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Carmen Aristegui, pictured at a news conference in July, is being sued by MVS, the broadcaster she used to work for. Changes to a law on fines in civil cases is making journalists in Mexico vulnerable. (AFP/Alfredo Estrella)

Change to Mexican law leaves critical journalists at risk of steep fines

By Jan-Albert Hootsen/CPJ Mexico Correspondent on September 2, 2016 2:56 PM ET

Sergio Aguayo, one of Mexico's most prominent political commentators, said he was taken by surprise when he heard he was being sued for "moral damages." The plaintiff, Humberto Moreira, is a former governor who faced allegations that he severely mishandled the state's finances, was involved in graft and corruption, and had ties to organized crime. He has always denied allegations against him, both when in office and after he resigned to become the president of the Institutional Revolutionary Party.

The focus of the case, which was filed on June 30, is a column that Aguayo wrote for the newspaper, Reforma, on January 20, in which he described Moreira as "a politician that released the stench of corruption." The column was published five days after Moreira's arrest in Madrid on suspicion of money laundering. The former governor denied the charge and was released by the Spanish authorities without charge, due to lack of evidence.

In the moral damages case, the former governor said that Aguayo had attacked "his image, honor and private life" and "hurt [Moreira's] feelings and his standing with others." Moreira demanded 10 million pesos (US$535,000) in damages from Aguayo. Reforma is not named in the case.

"I was taken aback when I first heard of the complaint. Many people and media have published accusatory pieces about Moreira. Mine was published five months before he decided to sue," Aguayo, an academic at Colegio de México, said. "It raises questions. Why me? Why now? When I think about it, the only real difference between me and other critics of Moreira is my involvement in the investigation of Allende."

The Allende case is an investigation that Aguayo is leading into the 2011 mass abduction and suspected murder by a criminal gang of about 300 people in a small town in the border state of Coahuila, which Moreira is a former governor of. If proven, the apparent massacre may be one of the worst atrocities committed during Mexico's drug war. A victim's association has accused officials, including Moreira and his brother Rubén, the current governor, of failure to protect the town, according to reports. The brothers denied the accusations. However, Rubén Moreira offered to make files on the Allende case available to Aguayo's investigation, implicitly distancing himself from his brother's moral damage lawsuit, the journalist told Reforma.

Several calls by CPJ to the offices of Moreira's legal representatives went unanswered. They and their client have not commented publicly on the case against Aguayo.

Moreira has also filed a civil defamation suit against Vanguardia, a prominent newspaper in Coahuila's state capital of Saltillo. CPJ reported in May that the former governor had brought cases against the newspaper and a reporter, Roxana Romero, for moral damages over a February 18 article that alleged the government improperly granted Moreira, a former teacher, a pension in December 2015. Moreira has not commented publicly on the allegation.

Mexican civil law defines moral damage, which is similar to civil defamation, as the "adverse effect on a person's feelings, affections, beliefs, dignity, honor, reputation, and privacy," as well the concept others might have of a person. Journalists and political analysts said that lawsuits for moral damage, meant to protect the reputation of private citizens against libel, are being used by politicians and businesses in an attempt to silence or intimidate journalists. Recent changes to a law in Mexico City that covers the protection of private life and public image have allowed for steeper fines against the press.

"I expect these cases to become more generalized in the near future," Javier Quijano, a lawyer in Mexico City, said. "You only need a handful of these cases to make journalists fearful enough to consider self-censorship."

Quijano is representing Carmen Aristegui, who is facing a moral damages lawsuit filed by Joaquín Vargas, owner of the broadcaster MVS. Aristegui was the anchor of an early morning radio show on the station until being fired in March 2015 over what MVS said was a breach of contract. Aristegui has said in interviews that she was fired after the broadcaster was put under pressure by the government over her investigative reporting. Both MVS and the government have repeatedly denied the allegation.

Months before she was fired, Aristegui's team reported on allegations of a possible conflict of interest involving the president's wife, the former actress Angélica Rivera, who had bought a multi-million dollar mansion from a contractor who has close ties to the president and had been awarded billions of dollars in government infrastructure contracts. An internal investigation by the federal corruption watchdog cleared the presidential pair of any wrongdoing, but the scandal, dubbed "Casa Blanca" (White House) continues to be an embarrassment to the Peña Nieto administration.

The Casa Blanca scandal is chronicled in the book La Casa Blanca de Peña Nieto, authored by two members of Aristegui's investigative team and published by Penguin Random House. In the prologue, Aristegui said MVS was "docile and submissive" to the federal government. According the prologue, she wrote that MVS was coerced into firing her by the federal government to protect lucrative broadcasting deals. MVS and the Peña Nieto administration have repeatedly denied the allegations.

Repeated calls by CPJ to MVS for comment went unanswered.

At a joint press conference on July 21, which CPJ attended, Aristegui said MVS had filed a civil suit that demanded an apology from Penguin Random House remove the prologue from the book, requested an "undetermined" amount of compensation, and sought to prohibit Aristegui from speaking about the Casa Blanca case on radio or television. The publisher's editorial director, Ricardo Cayuela, said he fully supported Aristegui and that the information in the book was not being questioned.

MVS confirmed in Mexican news reports that it had filed a lawsuit, but the broadcaster said that it did not seek financial compensation. It said it was seeking an apology from Aristegui and had demanded that the reporter prove her allegations.

Aristegui said she believes cases such as hers could set a dangerous precedent. "They could open the door for more and more cases," she told CPJ. "They could ultimately result in a tool that can be used repeatedly to impose self-censorship on journalists."

Journalists could also be affected by a Supreme Court ruling in May that overturned a legal framework in Mexico City that protected citizens from libel and journalists from having to pay fines that would cause financial ruin. Articles 39 to 41 of the law, known popularly as "Ley de Periodistas" (Journalists' law,) stipulated that the maximum fines could amount to no more than approximately 25,000 pesos.

In the case of actress Lucía Méndez versus television comedian Javier Parra Cortés, the court declared those articles unconstitutional. As a result, there are no legal limits on the amount of damages a journalist can be ordered to pay.

"You will see more lawsuits like this being filed," Quijano, the attorney, said. "People will start demanding excessive amounts of money. The way has been paved in Mexico for a U.S.-style claim culture. In Mexico, lawyers often work for a remuneration based on a percentage of the amount demanded by the plaintiff. That could amount to hundreds of thousands of pesos per case. Sergio Aguayo is being sued for 10 million pesos, but in future cases those amounts could rise to 30 or maybe even 30 million pesos."

In a July 28 column in Reforma, Lorenzo Meyer, an historian and political commentator, painted a dire picture of what a "financial deterrent" could mean. "If, in order to prevent being sued, every opinion or every critical remark uttered by a commentator had to be sustained by the kind of proof used in a trial," Meyer wrote, "then criticizing power and those in power would be almost impossible."

[Reporting from Mexico City]


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