In its ruling, released September 18, the high court unanimously overturned a 2005 appellate court decision and sentenced Dogliani to five-month suspended term. The Supreme Court found that the right to one’s “honor” limits the media’s right to inform, and that criminal defamation laws are intended to restrict freedom of expression. The high court found particular problem with the use of certain words—one story was headlined “Fraud”—that the judges said have legal meaning and “don’t add anything substantive”
In its 18-page decision, the court did not consider whether the articles were accurate, saying that “it does not matter that the fact is true.” The court went on to quote a Uruguayan jurist who in books on criminal law asserted that even accurate reporting can constitute defamation.
“We are greatly distressed by the verdict of the Supreme Court of Justice, which has sweeping repercussions on news coverage of government officials. In effect, the court has put public officials above public scrutiny, which is antithetical to democracy,” CPJ Executive Director Joel Simon said. “Courts throughout the region have found that public officials must be subject to scrutiny in a democracy. We urge legislators to repeal criminal defamation provisions and promote legislation that will bring Uruguayan laws in compliance with international standards on freedom of expression.”
In a statement, the Uruguayan Press Association (APU) expressed alarm at the verdict, saying that it will promote self-censorship. The court also appeared to turn back its own ruling in a 1997 case in which it found that the criminal laws protecting one’s honor cannot limit free expression.
The case is based on a March 2004 criminal defamation complaint filed by Alvaro Lamas, mayor of the western city of Paysandú, against Dogliani, a reporter for the Paysandú-based weekly El Regional. The complaint stemmed from a series of articles that month that accused Lamas of forgiving most of a local landowner’s tax debt, according to news accounts and CPJ interviews.
Dogliani was convicted by a local judge in December 2004 and sentenced to five months in prison. In July 2005, the appellate court unanimously overturned the verdict, stating that critical coverage did not violate criminal laws. Lamas disputed the accuracy of the coverage in an interview with CPJ. Dogliani and El Regional have stood by the accuracy of their coverage, according to Edison Lanza, a legal adviser to the APU. El Regional has since ceased to publish for unrelated reasons.
Laws that criminalize speech that does not incite lawless violence are incompatible with the right to free expression as established under Article 13 of the American Convention on Human Rights, according to a 1994 declaration by the Inter-American Commission on Human Rights. Uruguay has ratified the American Convention.
“Considering the consequences of criminal sanctions and the inevitable chilling effect they have on freedom of expression, criminalization of speech can only apply in those exceptional circumstances when there is an obvious and direct threat of lawless violence,” the Inter-American Commission stated.
In August 2004, the Inter-American Court of Human Rights overturned the 1999 criminal defamation conviction of Costa Rican journalist Mauricio Herrera Ulloa, a reporter with the daily La Nación. The court ruled that the verdict violated the right to free expression and ordered Costa Rica to pay damages to the reporter. The court’s president, Judge Sergio García Ramírez, wrote a separate, concurring opinion questioning the criminalization of defamation and suggesting that such laws be repealed.
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Consensus is growing among a number of international bodies that civil remedies provide adequate redress for press offenses. In April, Mexico City’s Legislative Assembly passed a bill that effectively eliminated libel and slander from Mexico City’s penal code, directing such complaints to the civil courts.