Attacks on the Press in 2008: Argentina

Adding to a mounting body of international legal opinion, two landmark rulings held that public officials may not be shielded from public scrutiny. In May, the Inter-American Court of Human Rights voided a criminal defamation sentence against a local journalist and urged Argentina to reform its defamation laws in line with regional standards. Two months later, the country’s Supreme Court of Justice affirmed the “actual malice” standard in determining liability in defamation cases involving public officials.

Free press advocates hailed the decision by the Costa Rica-based Inter-American Court of Human Rights, which voided the 1999 criminal defamation conviction of journalist and author Eduardo Kimel, as an important precedent in the campaign to decriminalize defamation in the Americas. The charges against Kimel stemmed from the 1989 book La Masacre de San Patricio (The San Patricio Massacre), in which the journalist criticized Judge Guillermo Rivarola’s investigation into the 1976 slaying of five Palatine priests. Rivarola filed a criminal defamation complaint against Kimel, alleging that the book had damaged his reputation. Kimel, now a reporter for the German news agency Deutsche Presse-Agentur, was given a one-year suspended prison sentence and ordered to pay 20,000 pesos in damages (US$20,000 at the time).

The Inter-American Court, the judicial branch of the Organization of American States, ruled that the state had violated Kimel’s right to free expression. The court urged Argentina to change its defamation laws in line with the American Convention on Human Rights, which states that “the right of expression may not be restricted by indirect methods or means.” Argentina ratified the convention in 1984. The court also ordered Argentina to pay Kimel 100,000 pesos (US$30,000) in damages and to reimburse expenses incurred by the legal assistance organizations that represented him. The court concluded that a criminal sanction for criticizing a public official was disproportionate.

No defamation reform legislation was in the works in late year, although the administration appeared receptive to making such changes. Officials met with the organizations representing Kimel to discuss ways to comply with the court’s decision. In hearings held before the verdict, Argentine officials told the court that it would adopt legislation in accordance with the American Convention on Human Rights.

A June decision by Argentina’s highest court further established journalists’ rights to criticize the actions of public officials. The Supreme Court affirmed the “actual malice” standard while overturning a 2003 civil judgment against the national daily La Nación for an editorial that criticized the Forensic Medical Corps of the Judiciary. The October 1998 editorial questioned the performance of the corps, which conducts medical forensic testing at the federal level, and said the agency was affected by political pressure.

The forensic corps argued that the newspaper had damaged its members’ rights to honor and privacy. In its decision, the Argentine high court found 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 “actual malice” standard requires a plaintiff to prove not only that the defamatory information alleged is false, but that the defendant knew the information was false or acted in reckless disregard of the truth. The standard was first articulated by the U.S. Supreme Court in the 1964 case New York Times Co. vs. Sullivan.

President Cristina Fernández de Kirchner’s first year in office was beset by problems, including a four-month farmers’ strike over government tax policy, economic turmoil, and revelations of secret campaign donations from outside the country. The Kirchner administration said the news media distorted reality during the protracted conflict with farmers, and it accused media of working together to support the strike. In April, in the midst of the conflict, Kirchner became embroiled in a press controversy that many viewed as unnecessary and distracting. She suggested that an editorial illustration by Hermenegildo Sabat, showing her with a bandage over her mouth, was a “message from the mafia.” The press group Foro de Periodismo Argentino (Forum of Argentine Journalism) said that while Kirchner had the right to publicly disagree with an article or a cartoon, it was unfair to ascribe criminal motives to the cartoonist.

Kirchner, elected in October 2007, gave the first news conference of her presidency in August. By that time, her approval ratings had tumbled after a heated battle with agricultural producers over a plan to raise grain export taxes. (The Senate ultimately rejected the tax plan.) Local journalists were taken by surprise because Néstor Kirchner, her predecessor and husband, never held a formal press conference during his four-year term and rarely had any direct contact with the national news media. The August news conference appeared to mark a change in the president’s communication strategy. Cristina Kirchner was later more open to the press, taking questions from reporters at public events, agreeing to a limited number of interviews, and writing opinion pieces for provincial newspapers.

Following a system that had been institutionalized during her husband’s presidency, the Kirchner administration manipulated the distribution of state advertising by withholding ads to critical media and rewarding friendly outlets with government spots, analysts said. In the first six months of 2008, the national government spent 181.7 million pesos (US$52 million) on official advertising, according to Asociación por los Derechos Civiles, a nonpartisan group that promotes constitutional rights. The amount exceeded the 164 million pesos (US$47 million) spent in the first half of 2007, and analysts said the pattern of distribution was unchanged from prior years.

Legislation that would establish clear rules for the placement of official advertising was stalled in Congress. With midterm elections approaching in 2009, journalists told CPJ, the administration had little incentive to promote reform legislation. Free press advocates have contended that manipulative government advertising violates Articles 14 and 32 of the Argentine Constitution, which bar censorship and guarantee press freedom, respectively; and Article 13 of the American Convention on Human Rights.

One of the convicted killers in the 1997 murder of photographer José Luis Cabezas was released on parole in late October. Gregorio Ríos had been sentenced to life in prison in 2000 after being convicted of instigating the crime. Many Argentine journalists considered the release a disturbing setback for the press.

Of the nine people convicted in the slaying of Cabezas, only two remained in prison by late 2008 as the defendants took advantage of legal provisions that allowed each year they served while their appeals were pending to be computed as two years. Cabezas, a photographer for the newsweekly Noticias, was murdered on January 25, 1997, in the city of Pinamar, Buenos Aires province. Cabezas had photographed reclusive business tycoon Alfredo Yabrán, thought to be the head of Argentina’s mafia. Ríos was Yabrán’s chief of security.

Few violent attacks were reported in 2008. On November 14, Fabricio Gilbota, a reporter with Radio Universidad and Norte newspaper in Chaco province, was stabbed in the back while he was covering a clash between municipal employees and street vendors in the provincial capital, Resistencia, the local press reported. The journalist was recovering after surgery.