In the current political climate, which remains tense despite a recent decrease in violence and an agreement between the government and the opposition to seek a peaceful solution to the political crisis, many members of the Venezuelan media, which has vigorously opposed President Hugo Chávez Frías, fear that the decision will curtail their ability to report critically of the government.
On July 15, the Supreme Court's Constitutional Chamber dismissed an appeal contending that several articles in the Venezuelan Penal Code were unconstitutional. Rafael Chavero Gazdik, a private lawyer who writes about constitutional issues, filed an appeal (acción de nulidad por inconstitucionalidad) in March 2001 stating that Articles 141, 148 to 152, 223 to 227, 444 to 447, and 450 of the Penal Code violated the Venezuelan Constitution and international obligations agreed to by Venezuela under Article 13 of the American Convention on Human Rights, which guarantees the right "to seek, receive, and impart information and ideas." (In Venezuela, private citizens can seek recourse in the court system if they feel that a law is unconstitutional.)
Articles 148 to 152 and Articles 223 to 227 of the Venezuelan Penal Code include the desacato provisions, which criminalize expressions that offend public officials and state institutions; Articles 444 to 447 and Article 450 address criminal defamation and slander; and Article 141 establishes criminal penalties for destroying the Venezuelan flag and other national symbols.
Citing the Inter-American Commission on Human Rights' (IACHR) 1994 "Report on the compatibility of desacato laws with the American Convention on Human Rights," which argued that desacato laws contravene Article 13 of the American Convention on Human Rights because they suppress freedom of expression, Chavero maintained that as a member of the Organization of American States (OAS), Venezuela should repeal desacato provisions or amend them in accordance with international standards. In his brief, Chavero also asked the Supreme Court to repeal criminal defamation provisions or to update them by introducing the "actual malice" standard in cases where the person offended is a public official or a public person. (The "actual malice" standard, first articulated by the U.S. Supreme Court in the 1964 case New York Times Co. v. Sullivan, requires a plaintiff to prove not only that the offensive expression or published information is false, but also that the defendant knew or should have known it was false at the time the expression or information was disseminated.)
Although Supreme Court Justice Jesús Eduardo Cabrera Romero's July 15 ruling slightly amended the wording in Articles 223, 224, 225, and 226, the justice rejected Chavero's arguments. Explaining his opposition to the repeal of "contempt laws," Justice Cabrera wrote that private powerful economic and political groups within society should not be allowed to express thoughts and ideas that potentially weaken "State institutions, for their own or other purposes." Cabrera maintained that "such institutional weakening ... may be promoted through persistent, vulgar, slanderous, excessive, and fallacious attacks, against the bodies that make up the country's institutional fabric."
In addition, the court ruled that Venezuelan laws guarantee human rights and were not incompatible with the American Convention on Human Rights, noting that Articles 57 and 58 of the Venezuelan Constitution establish the right to information and free expression and offer broader protection than that provided under Article 13 of the American Convention on Human Rights. Furthermore, the court's decision specified that the IACHR's recommendations issued in its 1994 report were not legally binding.
After the ruling was delivered, Eduardo Bertoni, the IACHR's Special Rapporteur for Freedom of Expression, issued a communiqué decrying the Venezuelan Supreme Court's decision. International human rights groups such as Human Rights Watch and Venezuelan organizations such as the Programa Venezolano de Educación-Acción en Derechos Humanos have also criticized the ruling.
Increasingly, international human rights organizations have recognized that public officials are subject to a greater scrutiny and should not enjoy a higher level of protection than the rest of society. The IACHR's Declaration of Principles on Freedom of Expression, approved in October 2000, states that "public officials are subject to greater scrutiny by society. Laws that penalize offensive expressions directed at public officials, generally known as ‘desacato laws,' restrict freedom of expression and the right to information."
The Declaration of Principles further argues 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." While the IACHR's Declaration of Principles is not a legally binding document, it represents the IACHR's interpretation of existing international law regarding freedom of expression.