Court asserts right to criticize public officials

New York, July 1, 2008–The Committee to Protect Journalists applauds the Argentine Supreme Court’s unanimous decision asserting that public officials should be held to a high level of scrutiny and overturning a civil judgment against a national daily that criticized a government agency. In a ruling that sets some of the clearest and broadest press protections in Argentine history, the court affirmed the “actual malice” standard in determining liability in defamation cases involving public officials.

In a ruling dated June 24, Argentina’s highest court tossed out a 2003 civil judgment against the daily La Nación for an editorial that criticized the Forensic Medical Corps of the Judiciary. The lower court awarded two members of the board 30,000 pesos apiece (US$9,925).

The October 1998 editorial questioned the performance of the corps, which conducts all medical forensic testing at the federal level, and said the agency was affected by political pressure. The forensic corps argued the newspaper damaged its members’ constitutional rights to honor and privacy. La Nación filed an appeal in 2004.

“We hail the court’s decision, which further establishes the rights of journalists to examine and criticize the conduct of public officials,” said Carlos Lauría, CPJ senior program coordinator for the Americas. “Public officials in a democracy such as Argentina should not be shielded from criticism and scrutiny.”

In its ruling, the high court stated that “criticism or dissent” of public officials in the exercise of their work “shouldn’t be subjected to any liability as every plural and diverse society needs democratic debate.” The court’s decision said that “in the context of public debate on issues of general interest, and especially regarding the government, any expression that could be qualified as an opinion, shouldn’t be subjected to civil or penal responsibility in favor of those who hold a position with the state.”

The court also affirmed the “actual malice” standard in determining liability in defamation cases involving public officials. That standard requires a plaintiff to prove not only that the allegedly offensive information is false, but that the defendant knew the information was false or acted in reckless disregard of the truth. The “actual malice” standard was first articulated by the U.S. Supreme Court in the 1964 case New York Times Co. vs. Sullivan.

“Journalistic investigation on issues of public interest plays an important role in the transparency required by a democratic system,” the Argentine court said. “Excessive rigor and the intolerance of mistakes would lead to self-censorship and deprive citizens of vital information to make decisions on their representatives.”

CPJ has campaigned throughout the region for standards that allow close scrutiny of public officials. The new ruling adds to a growing body of law in the Americas that public officials should not enjoy protection from scrutiny. In several cases, criminal penalties for defamation have been repealed or weakened.
In 1994, the Inter-American Commission on Human Rights set an important regional standard when it stated: “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.”

In August 2004, the Inter-American Court 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.

In April 2007, Mexican President Felipe Calderón Hinojosa signed a bill that effectively eliminated criminal libel and slander at the federal level, directing such complaints to the civil courts. Mexico joined El Salvador as the first countries in Latin America to repeal defamation as a criminal offense.

And on May 2 of this year, the Inter-American Court urged Argentina to void a criminal defamation sentence against a local journalist and reform its criminal defamation laws.