The IACHR and its Office of the Special Rapporteur for Freedom of Expression express grave concern over ruling ordering the newspaper El Nacional in Venezuela to pay more than 13 million dollars

April 21, 2021

Washington D.C. - The Inter-American Commission on Human Rights (IACHR) and its Office of the Special Rapporteur for Freedom of Expression (SRFOE) express their concern over the decision of the Civil Cassation Chamber of the Supreme Court of Justice, which ordered the Venezuelan newspaper El Nacional to pay 237 thousand petros -around 13 million dollars- for moral damages. The IACHR and its SRFOE call on the State to refrain from using direct or indirect pressure mechanisms aimed at silencing the informative work of communicators and to remove all disproportionate restrictions that prevent the media from doing their job.

According to information of public knowledge, on August 11, 2015, a former president and current representative of the National Assembly of Venezuela filed a civil lawsuit against the newspaper El Nacional, after the media replicated a report of the Spanish newspaper ABC which, based on the testimony of the former bodyguard of the official Leamsy Salazar, signaled out the representative for being supposedly linked to drug trafficking businesses. On May 31, 2018, the Third Court of First Instance in Civil, Commercial, Traffic, and Banking of the Judicial District of the Metropolitan Area of ​​Caracas heard the lawsuit for non-pecuniary damage and sentenced El Nacional to pay compensation of 1,000 million bolivars. In addition, it ordered the judicial indexation of the amount sentenced. On November 14, 2018, said judgment was declared final. The publication sanctioned by this decision is of high public interest and was reproduced by more than 80 media outlets, including international press agencies.

Additionally, the National Assembly representative would have filed a criminal action for continued aggravated defamation against the directors and members of the Editorial Board of El Nacional and members of the media La Patilla and Tal Cual. The claim emphasizes that "the harmful and public accusations" allegedly made by the newspapers "implicitly bear the imprint of the offense, despite their authors trying to justify them and shielding their actions behind the concept of freedom of information." In this context, on November 9, 2015, the IACHR granted precautionary measures in favor of Miguel Henrique Otero, editor-in-chief of El Nacional, among other journalists from La Patilla and Tal Cual, for considering that they were in a serious and urgent situation due to the repeated stigmatizing statements made by senior officials, the monitoring and surveillance acts, the prohibition of leaving the country, among other state acts that, taken together, could significantly restrict the right to freedom of expression.

Almost three years after the first instance civil judgment, on January 29, 2021, the legal representative of the official filed a request for certiorari in order to adjust the amount of compensation since, as he argued, it would be "meager" due to time elapsed and economic inflation and, therefore, it would not compensate for the alleged damage caused. Recently, on April 16, 2021, the Civil Cassation Chamber of the Supreme Court of Justice declared said request to be admissible and sentenced the media to pay 237 thousand petros, sending the file back to the first instance court to comply with the order. The judges understood that the actions of the media when publishing the questioned information constituted "very serious moral damage" for the official and led to "public contempt" against him, affecting him in his personal and family sphere, as well as in his social environment, for being "subjected to public derision without any justification." The sentence also took into account the effect that it had on his image, reputation, and "prestige in society" as a political actor, both nationally and internationally. Likewise, to arrive at its decision, the court considered that "there was no intention" on the part of the representative "to generate the defamatory news published", while it was possible to prove the guilt of El Nacional, based on its "full control of the information media to transmit the defamatory facts".

Likewise, according to public information in 2019, the National Assembly representative publicly expressed his interest in converting the facilities of the media into a university. "I sued El Nacional and its owners. El Nacional has an extraordinary headquarters building for a university. As soon as I have the sentence, tell me where to sign to hand over the building for the International University of Communication that our president Nicolás Maduro announced," said the official on December 4, 2019 during the broadcast of the program "Con el mazo dando", which he hosts on the state channel Venezolana de Televisión (VTV).

In recent years, the IACHR has documented the start of legal proceedings against journalists and the media aimed at punishing and inhibiting expressions that are critical of the actions of state authorities or on matters of public interest in Venezuela. As the Commission and the Inter-American Court have repeatedly pointed out, in democratic societies, public officials or people who aspire to hold public office are more exposed to public criticism. This different threshold of protection, according to the Inter-American Court, is explained by the fact that they have voluntarily exposed themselves to a more demanding scrutiny, which is why their activities leave the domain of the private sphere to enter the sphere of public debate. On this point, the Inter-American Court has also specified that "democratic control, by society through public opinion, fosters the transparency of state activities and promotes the responsibility of officials over their public management, which is why there should be a reduced margin to any restriction of the political debate or of the debate on questions of public interest". This does not mean that the honor of public officials or public persons should not be legally protected, but that it should be so in accordance with the principles of democratic pluralism.

In light of the foregoing considerations, the Office of the Special Rapporteur recalls that public officials not only have the obligation to have greater tolerance towards criticism, but also, due to their condition, have more possibilities to give explanations or respond to the questions or criticisms that are formulated. Likewise, the principle of strict necessity requires that the means chosen to repair damage should be the least costly for freedom of expression, appealing first to the right to rectification or reply and, only if this is insufficient, to subsequent legal liabilities.

On several occasions, the Inter-American Court has warned that the fear of an extremely high civil penalty can be as or more intimidating and inhibiting the exercise of freedom of expression than a criminal sanction. This, since it has the potential to compromise the personal and family life of those who denounce or publish information about a public official, in addition to resulting in self-censorship of both those who expresses themselves and other potential critics of the actions of a public servant. In this sense, the Office of the Special Rapporteur understands that the conviction of the Supreme Court of Venezuela against El Nacional becomes a serious warning for any person or media outlet that issues opinions or information about senior officials that may be considered offensive, which contradicts natural and necessary practices in any democracy. Likewise, it implies an economic damage that could even affect the very existence of the newspaper.

The Supreme Court's decision against El Nacional takes place within the framework of a profound political and institutional crisis in Venezuela, characterized, among other things, by questioned judicial independence and a context of generalized repression, which in recent years has led to the erosion of the Rule of law. In its 2017 Country Report, the IACHR found that the complex and multi-causal problem that the Venezuelan State is going through has its origin, among other factors, in the undue interference of the executive branch on the other branches of public power, a situation that undermines the separation and the balance of powers. Recently, in the press release published on February 5, the IACHR and its Office of the Special Rapporteur warned about the closure of democratic spaces in the country and condemned the attacks against human rights defenders and journalists. With the worsening of the context, in this case, directives from the newspaper have maintained that they have not been heard and their arguments have not been considered by the judges.

It is the duty of the States to guarantee the maximum degree of pluralism and diversity in public debate. For this, democratic societies need independent and plural media that can bring the most diverse information and opinions to the public.

As indicated, the Office of the Special Rapporteur calls on the State of Venezuela to refrain from using direct or indirect pressure mechanisms aimed at silencing the informative work of communicators, in accordance with Principle 13 of the IACHR Declaration of Principles on Freedom of Expression. In particular, to remove all disproportionate restrictions that prevent the media from fully performing their work. It also urges the State to adapt its legal system and internal practices to inter-American standards on freedom of expression.

The existence of the mechanisms described and their disproportion constitute a permanent risk for press freedom in Venezuela, but their activation by a person with the responsibility and power of a National Assembly representative is contrary to inter-American human rights standards; it confirms a regressive pattern to civil liberties and should arouse a strong rejection and concern on the part of the international community committed to democratic values and human rights.

The Office of the Special Rapporteur for Freedom of Expression was created by the Inter-American Commission on Human Rights (IACHR) with the aim of encouraging the defense of the right to freedom of thought and expression in the hemisphere, given its fundamental role in consolidating and developing the democratic system.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 096/21