For more than a decade, courts and legislatures throughout Latin America have found that civil remedies provide adequate redress in cases of libel and slander. Over this period, the Inter-American Court of Human Rights — an autonomous judicial institution, which is part of the human rights protection system of the Organization of American States (OAS) — has issued key decisions supporting press freedom, including a 2004 landmark ruling that struck down a criminal defamation conviction of a Costa Rican journalist.
So, when the court’s latest ruling was announced two weeks ago, free press advocates were dismayed. In its decision, involving Carlos and Pablo Mémoli, Argentine publishers of the small newspaper La Libertad in San Andrés de Giles, a town in Buenos Aires province, the court decided for the first time that a criminal sanction for defamation didn’t affect freedom of expression as established in Article 13 of the American Convention on Human Rights.
The case stemmed from a series of 1990 articles in La Libertad in which the paper denounced irregularities in the sale of public vaults in the local cemetery by a mutual benefit association, according to the ruling and press reports. Carlos and Pablo Mémoli, who are father and son, were sued on criminal defamation charges by the directors of the mutual company. In 1994, Pablo, who is the director of the publication, and Carlos received suspended prison sentences of five months and one month, respectively.
The plaintiffs also filed a civil suit for damages, which is still pending. The assets of both men have been frozen for 16 years by court order.
After exhausting domestic remedies in the Argentine judiciary, the Mémolis bought their case before the regional human rights court system. But the court judges, in a sharply divided 4-3 decision, ruled the conviction didn’t violate freedom of expression although the same court had earlier stated that the defamation laws used to convict the publishers were incompatible with the American Convention on Human Rights.
Even worse, the court ruled without further clarification that from now on opinions can be subjected to subsequent liability, including criminal sanctions, a reversal of the court’s previous ruling on the issue. The court also ruled that misuse of public goods, which was clearly exposed in the articles published in La Libertad, did not constitute an issue of public interest. During a public audience before the court in February, Catalina Botero, the special rapporteur on freedom of expression for the Organization of American States, said “the administration of public goods is clearly an issue of public interest” and added the journalists who denounced the mismanagement of those goods must be protected under international law.
The decision is particularly worrisome as it contradicts a prior ruling by the same court in 2008. In May of that year, the court voided the 1999 criminal defamation conviction of journalist and author Eduardo Kimel. The case stemmed from Kimel’s book, La Masacre de San Patricio (The San Patricio Massacre), in which he criticized an investigation into the 1976 slaying of five priests during the Argentine military dictatorship. After urging authorities to reform defamation laws in line with regional standards, Argentina’s Congress decriminalized libel and slander in 2009.
While this decision represents a severe blow to freedom of expression in the hemisphere, the ruling does not have any effect on inter-American jurisprudence that protects expressions deemed critical of public officials. CPJ has campaigned throughout the region for standards that allow close scrutiny of public officials. A growing body of law in the Americas has found that public officials should not enjoy protection from scrutiny. In several cases, criminal penalties for defamation have been repealed or weakened.
Leading press freedom advocates have expressed concern about the decision. José Miguel Vivanco, the executive director of the America’s Division of Human Rights Watch, wrote an opinion piece harshly criticizing the decision. “In a region where institutional weakness is the norm, this serious setback not only violates fundamental rights and freedoms, but also obstructs the fight against corruption,” said Vivanco.