Criminal Defamation Laws in Central America

Contents

I. Belize

A. Criminal Laws Restricting Freedom of Expression

1. Libel and Defamation

According to the Belize Libel and Defamation Act, a criminal prosecution of “any proprietor, publisher, editor or any person responsible for the publication of a newspaper for any libel published therein” may occur upon order of a judge.⁷⁵ Libel is not defined in the Act, and the punishment for criminal libel is not specified. However, the Supreme Court of Belize has defined libel as the publication of defamatory words about an individual which may impugn or injure a person’s reputation.⁷⁶

A defendant may plead as a defense that the libel was published in the newspaper without the required intent (that is, either actual malice or gross negligence) and that the defendant has published an apology in the newspaper before commencement of the action or “at the earliest opportunity afterwards.”⁷⁷ According to the Belize Supreme Court (Civil Procedure) Rules, a defendant may argue that the allegedly libelous material was true, if the words were (a) statements of fact, (b) “fair comment on a matter of public interest,” or (c) “expressions of opinion.”⁷⁸

A “fair and accurate report” published in a newspaper of the proceedings of a court, a public meeting, or a government meeting (where the newspaper reporter was admitted) shall be privileged (i.e. protected from prosecution), unless it is proven that the report was published or made maliciously.⁷⁹

However, these provisions do not protect from prosecution “the publication of any matter not of public concern and the publication of which is not for the public benefit.”⁸⁰ The law also does not allow the publication of any blasphemous or indecent matter.⁸¹ The privilege defense is not available if it is proven that the defendant was requested to print a “statement by way of contraction or explanation” and refused to publish it.⁸²

2. Seditious Libel

“Seditious libel” is also a crime in Belize under the Criminal Code.⁸³ It is defined as “the publication, by print, writing, painting or by any means otherwise than solely by gestures, spoken words or other sounds, of any matter with a seditious purpose.”⁸⁴ “Seditious purpose” is then defined as “a purpose to excite any of Her Majesty ‘s subjects to the obtaining by force or other unlawful means of an alteration in the laws or in the form of Government, or to the commission of any crime punishable under the first section of this Title [use of armed force against the government] or punishable under any law relating to treason.”⁸⁵ Seditious libel is punishable by imprisonment of up to two years.⁸⁶

Truth is not a defense to seditious libel.⁸⁷ Nor can the grounds of absolute or qualified privilege be used as a defense.⁸⁸ However, it is lawful in Belize for someone to “endeavor in good faith to show (a) that Her Majesty or the Government of Belize have been misled or mistaken in any of their measures; or (b) that there are errors or defects in the constitution or Government of Belize as by law established or in the administration of justice.”⁸⁹

In addition, any person tried as a principal for publication of allegedly seditious materials by an agent may have the charges against himself dismissed if the principal proves that “(a) the publication was made without his authority, consent, or knowledge; (b) the publication did not arise from any want of due care or caution on his part; and (c) he did everything in his power to assist in ascertaining the identity of the person responsible for writing and publishing respectively such words.”⁹⁰

3. Defaming Her Majesty

Defaming the Queen (who remains Belize’s head of state) is a separate crime, punishable as a misdemeanor. Its scope includes “[e]very person with intent to bring Her Majesty into hatred, ridicule or contempt, [who] publishes any defamatory or insulting matter, whether by writing, print, word of mouth or in any other manner concerning Her Majesty.”⁹¹

B. Enforcement of Criminal Defamation Laws

The above-mentioned provisions described have not been enforced in recent years. Similarly, it appears journalists have not been threatened with criminal charges.

C. Application of Criminal Defamation Laws to Internet and Mobile Communications

Pursuant to the Libel and Defamation Act, criminal defamation is limited to the publication of libelous material in newspapers.⁹² It seems plausible that the statute could apply to online newspapers, although it does not appear to have been applied in this manner to date.

The seditious libel provisions also could apply to the Internet and/or mobile communications because the definition of “publish” includes “writings, drawings, pictures, photographs or images, means to distribute them to a number of persons, or exhibit them in such a way that they may be seen by persons in a public street or in any other place to which the public has access, or to sell or expose or offer them for sale in any place.”⁹³ Again, however, these provisions do not yet appear to have been applied in this manner.

D. Status of Criminal Defamation Laws

It does not appear that there has been any recent debate on decriminalizing, or otherwise amending, Belize’s defamation and libel laws.

II. Costa Rica

A. Criminal Laws Restricting Freedom of Expression⁹⁴

1. Insults, Defamation and Calumny

The Costa Rican Penal Code penalizes “crimes against honor” in Articles 145, 146, 148 and 153 as private crimes (meaning that the complaint must be initiated by the affected individual).

In particular, Article 145 criminalizes insults (“injurias“), for which a person may be convicted if they have engaged in words or acts that offend a person’s dignity. If the offense occurs in that person’s presence or through communication directed to them, the penalty is an income-based fine, ranging from 10 to 50 days’ wages. If the offense is committed publicly, like in the press, however, the fine ranges from 15 to 75 days’ wages.⁹⁵

Defamation (“difamación“) is penalized by Article 146 of the Code, which provides for a penalty of 20 to 70 days’ wages where the defendant has dishonored someone else or disclosed private information sufficient to affect someone’s reputation.⁹⁶

Article 147 provides that falsely accusing someone of a crime is punishable by a fine of 150 days’ wages. This offence is known as calumny (“calumnia“)^.97

Article 148 criminalizes insults against the reputation of a dead person with injurious or defamatory statements. The right to accuse someone of this crime is held by the decedent’s spouse, children, parents, grandchildren and siblings (with an actual blood relationship). The penalty is a fine of 10 to 150 days’ wages.⁹⁸

Finally, it is also illegal to defame a legal person (that is, a corporation) or its agents by making false statements regarding the conduct of its/their business that can seriously damage the public’s trust in the company, its agents or their creditworthiness. A person convicted of this crime faces a fine of 30 to 100 days’ wages.⁹⁹

When the relevant offense involves publication of the message through the media, the head of the media organization may also be found liable for the relevant offence, so long as that person had the required (subjective) intent.¹⁰⁰

A civil claim for damages may also be brought as part of the same action.¹⁰¹

2. Printing Press Law

Costa Rica’s 1902 Printing Press Law contains provisions regarding injuries and calumny committed via print media, and sets out penalties for those crimes.¹⁰² However, Article 7 of the Law, providing for a prison term of one to 120 days for such crimes, was struck down by the Supreme Court in December 2009.¹⁰³

3. Information Crimes Law

In November 2012, the government enacted the Information Crimes Law, Law No. 9048 (also referred to in English as the “Cybercrimes Law”), which made it a crime to obtain and publish certain secret information.¹⁰⁴ One provision of this law, with a potentially grave impact on journalists, codified as Article 288 of the Penal Code, stated that

[A person] shall be punished with imprisonment of one to six years, if they improperly procure or obtain secret political information, security policies concerning the means of defense or foreign relations of the State, or affecting the fight against drug trafficking or organized crime.105

However, soon after the bill’s passage and in response to widespread public outcry, the government pledged that the law would not apply to journalists.¹⁰⁶ Following a legal challenge by journalist Randall Rivera, the Supreme Court suspended parts of the bill in 2012, including Article 288. The National Assembly then voted to repeal the “secret political information” section of the bill in April 2013.¹⁰⁷

B. Enforcement of Criminal Defamation Laws

Freedom House, an independent watchdog organization, has reported that “journalists remain vulnerable to criminal charges for defamation, with punishments including excessive fines and the placing of one’s name on a national list of convicted criminals.”¹⁰⁸

At the same time, however, Costa Rica’s courts have taken into account the importance of distributing news in the public interest, weighed against the individual interest in protecting personal honor. At times the courts have construed the right to information broadly, such that the media may report freely, or struck down punishments deemed too harsh.

For example, in Diputado Víquez v. Diario Extra, a former Costa Rican member of Congress brought defamation charges against Luis Jiménez Robleto, a reporter with the San José newspaper Diario Extra, based on a news story that the journalist wrote regarding alleged embezzlement. Mr. Jiménez was sentenced to 50 days in prison in March 2004, based on Article 7 of the Printing Press Law of 1902 (see above). Mr. Jiménez appealed to the Supreme Court, which overturned his conviction in 2010. As part of its review in the case, the Supreme Court struck down the Printing Press Law’s provision applying prison sentences for defamation^.109

In another case from 2010, a court in San José unanimously dismissed the criminal charges for defamation brought against Nicolás Aguilar Ramírez, a journalist for the newspaper La Nación. The charges were based on Mr. Aguilar’s authorship of two stories in 2007 regarding the arrest of alleged criminal Ng Tse Cheong Ming by Interpol in the United States.¹¹⁰ Mr. Cheong Ming had allegedly murdered a man in San José, Costa Rica and had then fled to the United States. Mr. Cheong Ming was deported to Costa Rica, tried for the murder and found not guilty. He then brought defamation charges against Mr. Aguilar and La Nación, together with civil claims for large sums, based on supposedly incorrect information in Mr. Aguilar’s stories. The court found that the facts published by Mr. Aguilar were true, and emphasized the journalist’s lack of malice and the public-interest nature of the story.¹¹¹ Such defenses— truth and public interest—are the most likely to prove successful for journalists facing criminal charges in Costa Rica.

Constitutional challenges to criminal convictions for defamation and calumny have also proven to be successful recently. For example, a constitutional challenge brought by journalist Randall Rivera against Costa Rica’s Information Crimes Law resulted in the Supreme Court temporarily suspending parts of the Law.¹¹²

C. Application of Criminal Defamation Laws to Internet and Mobile Communications

The Penal Code provisions named above apply without exception to any form of communication.

D. Recent Amendments to Criminal Defamation Laws

The most notable amendment in recent years was the abolition of the crime of contempt of authority (“desacato“) in 2002. The crime of desacato was then removed from the Penal Code by Law No. 8224 in March 2002, by revising Article 309 to read as follows:¹¹³

Article 309.- Threat to a public official.

Anyone who threatens a public official for reasons of his position, be the threat directed at the official personally or publicly, or through written, telegraphic, or telephonic communication, shall be punished by imprisonment of one month to two years.

The old version of Article 309 also punished those who “attack[ed] the honor or offend[ed] the decorum of a public official,” whereas the amended version removes this language and only sanctions “threats.” Thus, the revision effectively abolished the crime of “desacato.”

Further changes to Costa Rica’s law have taken place through the courts. As noted above, in December 2009 the Supreme Court eliminated prison terms from the 1902 Printing Press Law, which had previously imposed sentences of up to 120 days for defamation in print media.¹¹⁴

Finally, as noted above, in 2012, the Supreme Court suspended the application of certain provisions of the Information Crimes Law. The most problematic provision for journalists, the revised Article 288 of the Penal Code, was then removed by the legislature in April 2013.¹¹⁵

E. Status of Criminal Defamation Laws

There has been discussion within Costa Rica about abolishing criminal defamation provisions altogether, primarily driven by media entities, but this discussion has yet to result in concrete action. The norm has, instead, been for the courts to provide the media with space for expression by considering the media’s “duty to inform” to be a matter of public interest and expecting public figures to endure criticism (without that criticism engendering a crime) to a greater extent than private individuals.

III. El Salvador

A. Criminal Laws Restricting Freedom of Expression

1. Insults, Defamation and Calumny

The El Salvador Penal Code penalizes “crimes against honor and intimacy ” under Articles 177, 178 and 179.

In particular, Article 177 criminalizes calumny, providing that a person who falsely attributes the commission of, or participation in, a crime to someone is subject to a fine of 100 to 200 days’ wages. If the calumny is carried out “publicly ” or repeated by the same person, the fine increases to 200 to 300 days’ wages, and if it is repeated “publicly,” the fine is 300-360 days’ wages.

Article 178 criminalizes defamation, providing that: (i) attribution of conduct or a quality to a person, who is not present, that may damage his or her reputation is punishable by an income-based fine of 50 to 120 days’ wages; (ii) defamatory statements made in public or defamatory statements made repeatedly about the same person is punishable by a fine of 120 to 200 days’ wages; and (iii) repeated “public” defamation against the same person is punishable by a fine of 240 to 370 days’ wages.

These offences can be committed not only overtly, but also through allegory, caricature, symbolism and allusion.¹¹⁶ The offense is committed “publicly ” when it is carried out through printed papers or pictures or other graphic renderings (for example, posters), displayed in a public place, made available to many individuals, or made public in public meetings, through radio or TV broadcast, or other analogous media.¹¹⁷

Lastly, Article 179 criminalizes insults, providing that a person who offends the dignity or decorum of another who is present, by word or through action, is subject to a fine of 50 to 100 days’ wages. That fine increases to 100 to 180 days’ wages for public or repeated insults, and 180 to 240 days’ wages for repeated public insults.

Individual liability for these crimes is extended to journalists, reporters, editors, directors, managers, legal representatives and owners of media outlets that have made the critique, commentary, or report that gave rise to the crime, to the extent that they have acted as authors or participants in the crime in question that was carried out through their medium.¹¹⁸

The Penal Code provides for an additional penalty when the offender is a journalist who commits any of the above offences through mass media. In addition to the relevant fine, the journalist may be prohibited from practicing his or her profession for a period of six months to two years, depending on the severity of the offense and the harm caused.¹¹⁹

The Code also provides for a number of defenses upon which the accused may rely, notably:

• Article 183 – provides that truth is a defense to calumny and defamation, and except where the speech pertains to conduct protected by the right to personal or family privacy, each of the following categories: (i) the dissemination that foments the free flow of information in a democratic society; (ii) information about public figures; and (iii) information published by members of the news media who, without knowing of the falsity of the information they publish (and having diligently fact-checked their sources), reported the statement in question.

• Article 183-A – provides that a case for the crimes contemplated in this chapter may only proceed where there is legally sufficient evidence that there was no reply or that no right of reply was permitted.

• Article 191 – states that there will not be liability for unfavorable political, literary, artistic, historic, scientific, religious, or professional critiques, or for unfavorable concepts expressed through any medium in the exercise of the right to free expression, so long as the manner in which this is done does not have a libelous or injurious purpose or constitute an attack on the person. The article then expressly states that such unfavorable opinions or expressions (of a political, literary, artistic, historical, scientific, religious, or professional nature) shall not incur liability when expressed or broadcasted by journalists, by way of news, reports, news investigations, articles, opinion, editorials, caricatures, and general journalistic notes. This applies whether the journalistic statement is in written, radio, television, or online media. This is considered part of the “duty to inform,” which is a component of the right to information and also the journalists’ charge and function. Editors, managers, directors, and those who own media outlets or are responsible for programming are all included in the concept of journalism.

• Article 191-A – provides that, when a judge is deciding a case where the right to freedom of expression and a person’s right to honor collide, he or she shall consider: (a) if the conduct complained of corresponds to the social function of journalism, and (b) if the conduct or information tries to contribute to the formation of free public opinion, as established in Article 183. If (a) is true, the judge must take into account the frequent risks associated with the exercise of journalism’s function, as well as how the information was obtained from its source. In either case, the judge must balance these two “colliding” rights in reaching her decision.

Finally, it should also be noted that where it is not possible to criminally prosecute one of the above offences because the person or actor responsible for the defamatory statements cannot be identified but there is sufficient evidence that a crime has occurred, the legal or natural persons owning such media have “vicarious civil liability ” only. Vicarious civil liability means that a person or entity is liable for the actions of another person when engaged in some form of joint or collective activity. In all cases, the damages will be proportionate to the harm caused.¹²⁰

2. Desacato

Article 339 of the Penal Code criminalizes “desacato” (or “contempt”), by providing that offending the honor or dignity of a public official or threatening him or her in his or her presence or in a writing directed to him or her is punishable by six months to three years in prison. If the offense is against the President or Vice President, a Deputy of the Legislative Assembly, a cabinet minister or sub-secretary, or a judge, the maximum penalty may be increased by one-third.

B. Enforcement of Criminal Defamation Laws

Criminal prosecution of journalists is rare in El Salvador. However, extralegal threats and violence against the press have occurred in the recent past.¹²¹

C. Application of Criminal Defamation Laws to Internet and Mobile Communications

Mobile and Internet communications are covered by the criminal defamation laws described above.

D. Status of Criminal Defamation Laws

Important amendments to the criminal defamation laws were made in September 2011 through Decree No. 836.¹²² Most significantly, this decree replaced prison sentences with financial penalties (fines); however, it did not decriminalize any of the acts described in the Penal Code.¹²³

There is not currently any significant discussion or momentum towards decriminalizing defamation or “desacato” (contempt).

IV. Guatemala

A. Criminal Laws Restricting Freedom of Expression¹²⁴

The Guatemalan Criminal Code penalizes defamation, calumny and insults as “crimes against honor” under Articles 159 through 166.

Specifically, Article 159 criminalizes calumny, by prohibiting the false imputation of a crime to another person. This applies only if the crime attributed to that person is of the type that would not require the victim’s participation in order to be prosecuted by the government (that is, it could not be prosecuted “ex officio”). Calumny is punishable by a prison term of between four months to two years and a fine of 50 to 200 quetzals (about 7 to 26 US dollars). Under Article 160 of the Code, the accused can defend against an accusation of calumny by proving the truth of the alleged imputation.

Article 161 criminalizes “insult” by providing that “[a]ll expression or executed action to dishonor, discredit or scorn another person is insult.” Insult is punishable by a prison term of two months to a year. Unlike with the crime of calumny, the accused cannot rely on the truth as a defense.

Article 164 criminalizes defamation by providing that “[t]here is criminal defamation when accusations constituting calumny or insult are made in the form or via the medium of publication that can provoke hatred or discredit or that will reduce the honor, dignity, or the decorum of he who is offended, before society.” Defamation is punishable by a prison term of five years.

Lastly, Article 165 also provides that “[h]e who knowingly reproduces, by any medium, insults or calumnies committed by another, will be punished as if he is the author of the same between two to five years.”

For journalists, an effective defense to these crimes is to proceed in the courts with a “print jury ” instead of proceeding through the ordinary criminal process. This “print jury ” is only available to journalists and it is regulated by the Law on Freedom of Thought (Ley de Libre Emisión del Pensamiento). The role of the print jury is to decide, on a case-by-case basis, whether the accused committed a crime of speech.¹²⁵ If the jury decides that the accused committed a crime, the judge will continue the proceedings to decide the punishment.¹²⁶

However, if the jury decides that a crime was not committed, then the case will be dismissed.¹²⁷

The jury is composed of 21 jurors elected by the relevant department of Guatemala, seven jurors elected by the Bar Association, seven jurors elected by the Journalism Association, seven jurors elected by the municipality of the capital, and nine jurors from the other departments where there is a press and a broadcasting station.¹²⁸ The benefit of the print jury is that it represents different social interests and that it includes among its members jurors chosen by the Journalism Association.¹²⁹

B. Enforcement of Criminal Defamation Laws

These laws are applied as a personal felony charge against the person who allegedly committed the offense, journalist or not. There is no absolute right to criticize in Guatemala; any special consideration of journalism occurs as an effect of the above-mentioned law and its resulting procedures.¹³⁰

The most relevant recent case involves journalist Jose Rubén Zamora Marroquín, the president of the newspaper elPeriódico, who was recently accused of coercion, blackmail, extortion, violating the constitution, and insulting the President by the President and Vice President of Guatemala.¹³¹ A judicial order was put in place barring Zamora from leaving the country until other requests, like the freezing of his assets, were decided.¹³²

Zamora published articles and columns that accuse the President and Vice President of corruption and ties to organized crime.¹³³ In his complaint, the Guatemalan president said that “elPeriódico had damaged [my] and the country ‘s reputation.”¹³⁴ On January 9, 2014, the President and Vice President of Guatemala withdrew the criminal charges against Zamora, thus lifting of the judicial order that prevented Zamora from leaving Guatemala.¹³⁵ However, as of the time of writing, the President and Vice President continue to pursue civil charges against Zamora, which will be decided by an ad hoc tribunal pursuant to the Law on Freedom of Thought.¹³⁶ Additionally, in October 2014, Enrique Alejandro Toledo Paz, ex director of the Roosevelt hospital in Guatemala, sued Zamora for calumny and defamation.¹³⁷ The aim of the civil charges is widely viewed as silencing Zamora’s criticisms of the President and Vice President.

Another recent case involves journalist Giovanni Fratti Bran, who was accused of criminal defamation by the Federation of Agricultural Cooperatives of Coffee Producers in Guatemala (Federación de Cooperativas Agrícolas de Productores de Café en Guatemala, FEDECOCAGUA).¹³⁸

The basis for the action, which remains pending, is that, in October 2011, Fratti stated that the International Commission Against Impunity in Guatemala (Comisión Internacional contra la Impunidad en Guatemala, CICIG) and the Guatemalan Attorney General’s Office were “worthless” because they failed to investigate FEDECOCAGUA, Banrural, and the National Association of Coffee in relation to the death of attorney Rodrigo Rosenberg Marzano.¹³⁹

C. Application of Criminal Defamation Laws to Internet and Mobile Communications

Article 164 provides that if defamation is made by “means” of mass communication, it is considered criminal defamation. This provision thus includes the Internet.

D. Status of Criminal Defamation Laws

Most notably, the crime of “Desacato to Presidents of the State,” in Articles 411, 412 and 413 of the Criminal Code, was declared unconstitutional by the Guatemalan Constitutional Court on April 12, 2006. This provision is therefore no longer in force in Guatemala. Despite widespread public support for this development, there does not appear to be any discussion currently regarding the repeal of the other criminal defamation offenses.

V. Honduras

A. Criminal Laws Restricting Freedom of Expression

Honduras has a national Penal Code that criminalizes calumny, insult and defamation in Title III, “Crimes Against Honor.” These crimes apply equally against the person who initially commits the offense and any person who, according to Article 161, spreads or disseminates the offending statements further.

In particular, Article 155, criminalizing calumny, states that the calumny or false accusation of a crime (the crime being of the type that does not require the victim’s participation in order to be prosecuted by the government), is punishable by 2-3 years of imprisonment. In addition, at the victim’s request, the deciding portion of the sentence in which the calumny is declared may be published in the papers of the greatest circulation in the country, at the cost of the defendant. However, under Article 156, a person accused of calumny may completely exonerate him or herself by proving the truth of the criminal act that had been attributed to the victim.

Article 157, criminalizing “insult”, provides that “a person who gives expression or takes an action to the dishonor, discredit, or contempt of another person shall be punished for insult, with a sentence of 1-2 years of imprisonment.” Under Article 158, proof of the truth of the offense shall not be a defense, except where the offended person is a public employee or official and the accusation concerned the exercise of that employee or official’s duties. Under Article 159, a judge may declare insult to be without punishment in certain specific situations, such as when the insult was reciprocal (that is, both parties are guilty of having insulted each other, under the meaning of the statute).

Lastly, Article 160, criminalizing defamation, establishes that “[t]he crime of defamation occurs and the guilty person is charged with calumny or insult, as may be the case, with the punishment increased by one-third (1/3), when the accusations constituting calumny or insult are made in a form or by a medium of dissemination that incites public hatred or contempt against the accused person.”

B. Enforcement of Criminal Defamation Laws

There have been several relevant cases in which the offended party has brought proceedings against a journalist on the basis of the journalist’s accusations. Normally, however, such matters are instead mediated through the conciliation process, and the judicial proceeding does not go forward.

Four recent cases are described below—they are particularly instructive on potential defenses for future defendants to criminal defamation prosecutions:

1. Johnny Kaffati’s v. Esdras Amado López

The most important defamation case of the last few years is Johnny Kaffati’s defamation case against the journalist Esdras Amado Lopez, Director of Cholusat Sur, Channel 36, in

2005. The journalist had accused Mr. Kaffati (who served as the Minister Advisor on Housing matters during the 2002-2006 presidential term) of wanting to transfer funds from the Public Employee Retirement and Pension Institute (Instituto de Jubilaciones y Pensiones de Epleados Públicos, INJUPEMP) to a bank in which Mr. Kaffati was a shareholder. In the end, the transfer never occurred, but Mr. Kaffati brought proceedings with a judicial complaint against the journalist.

The defense attorney for Mr. Amado argued that the information on which Mr. Amado relied in accusing Mr. Kaffati was an official report. However, this report was never shown in court, and the accusations against Mr. Kaffati have not been proven in court.

The matter is still pending within the judicial system. It was first annulled for containing fundamental procedural errors (vicios de nulidad), but the action was then re-initiated by Mr. Kaffati. The resulting judgment is currently on appeal to the Criminal Chamber of the Supreme Court of Justice.

2. Marcelo Chimirri v. Renato Álvarez and Roxana Guevara

In 2007, the ex-Manager of Hondutel (the national telecommunications company), Marcelo Chimirri, brought an action against the journalists Renato Álvarez and Roxana Guevara of Televicentro. The action was premised on the fact that the journalists had repeated a report prepared in Mexico in which Mr. Chimirri was accused of fraudulent acts against Hondutel, of having inexplicably increased his fortune, and of having been involved in the death of Yadira Miguel Mejía.

The action was declared inadmissible by the sentencing court, as the court considered the journalists’ acts not to constitute a crime. The action was thus closed without further proceedings in 2007. The case has not been re-opened. The defense for the accused had argued that reading the report prepared in another country by a third person did not constitute a crime, given that the journalists were complying with their task of being information providers and never accused Mr. Chimirri of committing a crime. However, the case was dismissed before the judge reached the merits; therefore, this defense was not tested in court.

3. Carlos Ismael Galeas

In 2012, Carlos Ismael Galeas, news director at radio San Miguel in Marcala, in the central department of La Paz, was indicted for the crime of defamation by the prosecutor Siomara Benítez Molina. The accusation was based on the fact that Mr. Galeas had revealed that certain members of the police force were investigating coffee smuggling into El Salvador, but that the investigation was halted because high-up members of the very same National Police had been implicated.

The sentencing court found the charges of defamation to be without merit, and the action was therefore declared inadmissible and closed without further proceedings as of the beginning of 2013. The attorney for Mr. Galeas had argued that the action did not constitute a crime, because it merely retransmitted a declaration of a police official, within which it was the police official himself who indicated that there were high-up officials involved in the coffee smuggling to El Salvador.

4. Julio Ernesto Alvarado

In 2014, an appeals court ruled to forbid television journalist Julio Ernesto Alvarado from practicing journalism for 16 months as part of a criminal defamation conviction. Mr. Alvarado will appeal the case to the appeals court and then the Supreme Court in Honduras, and has asked the Inter-American Commission on Human Rights to take up the case if that fails.

The case was the result of a series of broadcasts on Mi Nación in 2006 in which the appointment of Belinda Flores de Mendoza as Dean of the Economics School at Autonomous National University of Honduras (UNAH) was discussed. The broadcasts alleged irregularities in the granting of degrees while she was in her previous position at the University. Flores filed a criminal defamation suit against Alvarado, as well as against Carlos Gustavo Villela, a professor at the University, and Guillermo Ayes, head of the Teachers’ Association at UNAH. A Tegucigalpa court in 2011 found the three men innocent, but Flores appealed. In December 2013, the Supreme Court found Alvarado guilty, but upheld Villela and Ayes’ verdict. In the ruling, the court dismissed Alvarado’s defense that he had merely cited the opinions of others, and said that by voicing these allegations he had damaged Flores’ honor and reputation.¹⁴⁰

C. Application of Criminal Defamation Laws to Internet and Mobile Communications

Honduras’s criminal defamation laws extend to every kind of communications medium— radio, television, written, or electronic. No matter the medium or the audience that has been reached, the important element is the act or fact itself, and the action may thus arise from any declaration made via any medium.

D. Status of Criminal Defamation Laws

The Penal Code’s provision regarding desacato or insult (Article 345) was overturned in 2005 by the Constitutional Chamber of the Supreme Court of Honduras.¹⁴¹ The Court determined that Article 345 of the penal code was unconstitutional “because it provided ‘special protection’ to public officials and restricted freedom of expression.”¹⁴²

However, the generic calumny, insult and defamation provisions cited above are still in force.¹⁴³ These articles were last revised (without any significant changes) as follows: (a) Decree 59-97 of May 8, 1997 (published June 10, 1997 and in force as of that date) amended Articles 155, 157, and 165 of the Penal Code; and (b) Decree 191-96 of October 31, 1996 (published on February 8, 1997 and in force from that date) amended Articles 156 and 160. In 2012, the then President Porfirio Lobo Sosa announced that he was going to present a bill to decriminalize defamation.¹⁴⁴ Since then, however, to the best of our knowledge, there have been no efforts underway to repeal the laws of Honduras with respect to criminal defamation, calumny, and insult.

VI. Nicaragua

A. Criminal Laws Restricting Freedom of Expression

Defamation and “desacato” (contempt) are both criminalized in the Nicaraguan Penal Code. The penalty for both crimes are fines rather than imprisonment.

1. Insults and Calumny

Nicaragua’s Penal Code penalizes “crimes against honor” under Articles 202 through 205.

In particular, Article 202, penalizing calumny, provides that “[h]e who falsely imputes to another the commission of or participation in a specific crime will be sanctioned with a fine of 100 to 200 days’ wages.”¹⁴⁵ If the calumny is disseminated publicly, the penalty will be a fine of 120 to 300 days’ wages.

Article 203, penalizing “insult,” provides that “[w]hoever via expression or action harms the dignity of another person, discrediting their fame, image, reputation, honor or offending against their self-esteem, will be sanctioned with a fine of 100 to 200 days’ wages.”¹⁴⁶ If the insult is disseminated publicly, the penalty will be a fine of 200 to 300 days’ wages.

Nicaragua also penalizes the unauthorized dissemination of images of a deceased person, and offending against the memory of a deceased person. Specifically, the law states that “whoever disseminates, through any medium, images of a deceased without authorization of his spouse, parents, children, or siblings, with ill intent that increases the pain generated by that person’s death will be sanctioned with a fine of 100 to 300 days’ wages.”¹⁴⁷ In addition, “whoever offends against the memory of a deceased person with defamatory or libelous expressions, will be sanctioned with a fine of 100 to 200 days’ wages.”¹⁴⁸ The right to bring an action for this crime belongs to the spouse, parents, children or siblings of the deceased.

The Penal Code provides for an “aggravating factor” where the calumny or insult is carried out for financial gain. In such cases, the fine imposed is, at minimum, the maximum fine that can normally be imposed for the relevant offense. At maximum, an aggravating factor allows a court to fine the accused with the maximum fine for that offense, plus an additional 50% of that amount.¹⁴⁹

The statute of limitations for both calumny and insult is thirty days.¹⁵⁰ This means that a victim must bring charges within this time against the alleged offender.

The Penal Code provides for a number of defenses against the crimes of calumny and insult. As an initial matter, Article 204 provides that no crime of defamation will exist where:

• The accusation was truthful and connected with the defense of a current public interest;

• The information concerns newsworthy facts that were gathered in accordance with journalistic ethics;

• The expression concerns unfavorable opinions of political, literary, artistic, historical, scientific, professional criticism without an offensive purpose;

• The expressions were directed against functionaries or public employees about truthful facts concerning the exercise of their official duties;

• The expression deals with an unfavorable view that was expressed while fulfilling a duty or exercising a right and does not demonstrate an offensive proposal;

• The offenses were contained in written pleadings or in oral argument by litigants, plaintiffs or defendants before the Court, and concerning the objective of the proceedings. These are subject only to the corresponding disciplinary sanctions normally provided for statements relating to court proceedings.¹⁵¹

Retraction of the calumnious or insulting material may also extinguish the defendant’s criminal liability, so long as the offended person accepts the retraction. At the request of the victim and the defendant’s cost, the judge may order the publication of the retraction. Where the calumny or insult was disseminated through a specific means of communication, the judge may order that the retraction is published in a similar fashion in the same means of communication.¹⁵²

At any time prior to the defendant’s sentence, the offended person may pardon him or her, which will exempt the defendant from criminal liability.¹⁵³

2. Desacato

The Nicaraguan Penal Code also provides for a “desacato” (contempt) offense, under Title XX, “crimes against public order.” Unlike in other Central American countries, the crime of desacato in Nicaragua appears to be divorced from the defamation context and more closely related to the concept of contempt of court. Specifically, Article 462 provides that “[h]e who disobeys a judicial resolution or a resolution emanating from the Public Prosecutor, unless it is in connection with the detention itself, will be subject to six months to a year in prison or a fine of 50 to 150 days’ wages.”¹⁵⁴ The offence will no longer exist when the disobeyed resolution is complied with voluntarily or as a result of a subsequent exercise of authority.

B. Enforcement of Criminal Defamation Laws

Criminal defamation lawsuits are brought frequently against journalists in Nicaragua.¹⁵⁵ In January 2012, a pro-government journalist and head of the local chapter of the Association of Journalists, Luis Fernando Pozo Maradiaga, accused a journalist who is a critic of the regime, William Aragón Rodríguez, of calumny and insults. Aragón was accused of linking Pozo to corruption. The judge suspended the proceedings, finding there to be no evidence to support either offence.¹⁵⁶

C. Application of Defamation Laws to Internet and Mobile Communications

While the penal code does not refer explicitly to Internet and/or mobile communications, it does not exclude them. The broad wording of the provisions cited above would appear to indicate that such communications are included within their scope.

D. Status of Criminal Defamation Laws

A revised Penal Code entered into force in Nicaragua in 2008. The revisions entailed a number of changes to render the criminalization of defamation and Nicaragua’s desacato crime less restrictive on the media. Some of the most significant are:

• Previously, if the defamation was disseminated through the press or other widely distributed publications, at a public meeting, or through cinematography, radio, television, recordings, or similar means, the relevant fine would be augmented by 50%.¹⁵⁷ This provision has been abolished.

• Also, in such cases, the fine was required to be paid within three days of the guilty verdict, on penalty of the immediate suspension of the medium that published the defamation.¹⁵⁸

• Directors, editors and owners of newspapers, printing presses, radio stations, television stations and other media through which defamation was disseminated were considered “coauthors” of the crime. They were obliged to publish either a retraction or the guilty verdict within 24 hours of it being handed down, and pay the relevant fine, augmented by 50%.¹⁵⁹

• With regard to defamation published by the foreign press, the Code penalized those who sent the relevant material abroad from Nicaragua, or who contributed to the introduction and circulation of the relevant publications within Nicaragua, with “manifest intention” to propagate the defamation.¹⁶⁰

• The Code previously included within the crime of desacato:

Those who provoke grief in, libel, defame or insult by word or deed, threaten a public official in the exercise of its duties or by reason of them, in his presence, or by notification or writing directed at him.

• The statute of limitations previously ran from 30 days through one year depending on the circumstances.¹⁶¹ It now stands at 30 days in all cases.

Neither decriminalization nor repeal of the existing laws is currently a topic of debate within Nicaragua. However, it is worthy of note that, in February 2011, Nicaragua’s Supreme Court introduced a bill that would make “media violence” a criminal offence. While the bill’s purported aim was to reduce the high number of crimes against women—with the crime of “media violence” aimed at preventing women from being disparaged and satirized in the press—the International Press Association voiced concerns that it would cause “absurd censorship, self-censorship and serious repression of journalists and the news media.”¹⁶² In the face of similar concerns voiced by citizens, and particularly the media, the legislature removed all reference to “media violence” during the consultation process and before the bill passed into law.¹⁶³

VII. Panama

A. Criminal Laws Restricting Freedom of Expression

Freedom of speech and press are protected in Panama’s constitution. However, Panama’s Penal Code criminalizes defamation, the penalties for which include fines and prison time.

1. Insults and Calumny

Panama’s Penal Code penalizes “crimes against honor” under Articles 190 through 192.¹⁶⁴ In particular, Article 193, criminalizing “insult,” provides that “[w]hoever offends the dignity, the honor, or the decorum of any person in writing or any other medium will be punished with sixty to one hundred twenty days fine.”

Article 194, criminalizing “calumny “, states that “[w]hoever attributes falsely to another person the commission of a punishable act will be sanctioned with ninety to one hundred [and] eighty days fine.”

However, if the aforementioned crimes are committed “through an oral or written social media or using an information system,” the offender will be punished in the case of insult with prison of six to twelve months or its equivalent in days-fine and for calumny with prison of twelve to eighteen months or its equivalent in days-fine.¹⁶⁵

The Criminal Code also provides for a number of defenses on which the accused may rely, notably:

• Article 196 – For crimes against honor, the public and consented retraction for the offense will eliminate the offender’s criminal responsibility. When the calumny or injury concerns public servants listed in Article 304 of the Constitution of Panama, such as elected officials or governors, criminal sanctions will not be imposed, although civil liability may still apply.

• Article 197 – The person accused of calumny will be left free of punishment if he proves the truth of the accused facts. The person accused of injury will only be permitted to prove the truth of his accusations when those accusations do not refer to conjugal or private life of the offended person.

• Article 198 – The discussions, critiques, and opinions about official acts or omissions of public servants, related to the exercise of their functions and also about literary, artistic, historic, scientific, or professional critique will not be a “crime against honor.”

2. Desacato

Legislation criminalizing “desacato” (contempt) was repealed in 2008.

B. Enforcement of Criminal Defamation Laws

Criminal defamation cases against journalists “occur regularly and often take years to move through the legal system.”¹⁶⁶ The following are examples of the most notable recent cases.

In July 2008, the Supreme Court voided presidential pardons granted in 2004 as the pardons were deemed unconstitutional. The pardon recipients included 87 journalists charged with criminal defamation.¹⁶⁷

In 2010, a Panamanian court of appeals convicted two TV journalists of criminal defamation and banned them from professional work for one year. The case stemmed from a 2005 story, aired by the national broadcaster TVN Canal 2, alleging that Panamanian immigration officials were taking part in human trafficking. Two officials named in the story filed a defamation complaint against Sabrina Bacal, the station’s news director, and Justino González, the reporter on the story, Panamanian press reports said. In separate rulings in February and March, two lower courts had dismissed the charges against the reporters.

However, in a ruling dated September 28, 2010, an appeals court in Panama City overturned the lower court decisions and barred the reporters from working for one year. The court also ordered Bacal and González to pay a US$3,650 fine or be subjected to a one-year suspended prison term. Facing criticism from the local press and human rights defenders, then-President Ricardo Martinelli issued a full pardon to the journalists.

Also in 2010, a 70-year-old Panamanian journalist was arrested and jailed on a defamation conviction. The charges against Carlos Núñez López stemmed from a 2000 story in the now-defunct weekly newspaper La Crónica about environmental damage in the province of Bocas del Toro. A landowner alleged his reputation had been damaged by the article, the local press said. While the journalist was convicted to a one year prison term he was re- leased after spending 19 days in prison.¹⁶⁸

C. Application of Defamation Laws to Internet and Mobile Communications

In Panama, there is no express provision that extends criminal defamation to Internet or mobile communications. Additionally, there appear to be no government restrictions on the Internet, which was accessed by 45 percent of the population in 2012.¹⁶⁹

D. Status of Criminal Defamation Laws

Panama has partially decriminalized defamation. In 2004, the National Assembly of Panama adopted a Constitutional amendment that repealed a Constitutional provision that had criminalized criticism of country leaders or government policies by the press.¹⁷⁰ The amendment was signed into law by President Martín Torrijos in July 2005, and stated that “[n]o public official with rank and jurisdiction shall impose any fines on, or dictate prison sentences for, those who are deemed to have treated them with disrespect or have insulted them while fulfilling their official duties.”¹⁷¹

Subsequently, in 2008, Panama amended the Criminal Code to conform to this constitutional amendment. Specifically, under a May 2008 reform, defamation of certain high-ranking public officials is no longer an act that is subject to criminal sanctions, although it remains a criminal offense.¹⁷²

Notwithstanding this, other forms of criminal defamation remain in place.¹⁷³ Moreover, in early 2011, a draft bill was introduced in the National Assembly that would have imposed a prison sentence of two to four years on any individual found guilty of “insulting” the president or any government official. The bill was ultimately withdrawn after serious public criticism.¹⁷⁴