Critics Not Criminals: Regional Jurisprudence

Below is a summary of the key Inter-American Court of Human Rights (“IACtHR”) decisions rendered on issues of criminal defamation since 2001. Although holdings from the IACtHR are not controlling in all jurisdictions in the Americas, they provide useful guidance on this type of case and set important precedents for further application of the laws across the region.

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1. Carlos and Pablo Mémoli v. Argentina

In what has been viewed as a setback, the IACtHR ruled in 2013 for the first time that a criminal sanction for defamation did not affect freedom of expression as recognized under Article 13 of the American Convention on Human Rights.⁷ This case arose from a series of articles published in 1990 in the newspaper La Libertad, in which the paper denounced certain irregularities in the sale of public vaults in a local cemetery by a mutual benefit association. The directors of the mutual company sued Carlos and Pablo Mémoli on criminal defamation charges. In 1994, Pablo and Carlos received suspended prison sentences of five months and one month, respectively. Further civil defamation claims have been filed against the Mémolis and their assets were seized. After exhausting domestic remedies in the Argentine judiciary, the Mémolis filed a claim before the IACtHR.⁸ The court, in a sharply divided 4-3 decision, found that the convictions did not violate the freedom of expression. This decision runs counter to the IACtHR’s ruling in Kimel v. Argentina (Judgment of May 2, 2008)⁹ where it had found that Argentina’s defamation laws used to convict news publishers were incompatible with the American Convention on Human Rights.

2. Herrera Ulloa v. Costa Rica

In 2004, the IACtHR overturned a criminal defamation sentence imposed against Costa Rican journalist Mauricio Herrera Ulloa. The court held that such a conviction violated the freedom of thought and expression protected under Article 13 of the American Convention on Human Rights. In particular, the Court found that given the particulars of this case there was a public interest in exposing corruption, and that public officials and other individuals who “enter the sphere of public discourse” had to tolerate a greater “margin of openness to a broad debate on matters of public interest.”¹⁰

3. Ricardo Canese v. Paraguay

Also in 2004, the IACtHR ruled that the criminal defamation conviction and prosecution against Paraguayan politician Ricardo Canese violated Article 13 of the American Convention on Human Rights.¹¹ During the 1993 presidential campaign in Paraguay in 1993, candidate Ricardo Canese made statements to the media against candidate Juan Carlos Wasmosy, whom he accused of being involved in irregularities related to the construction of a hydroelectric plant. Mr. Canese was prosecuted and sentenced to four months in prison. The Inter-American Court found that the conviction was disproportionate and violated Canese’s right to freedom of expression. The Court also underscored the importance of freedom of expression during election campaigns, as people should be fully entitled to raise questions about candidates so that voters can make informed decisions.¹²

4. Alejandra Matus v. Chile

In 1999, El Libro Negro de la Justicia Chilena was released in Chile, written by journalist Alejandra Marcela Matus Acuña and published by the Planeta Publishing Company. On that same date all copies of the aforementioned book were confiscated, under judicial proceedings instituted for violation of the State Security Law of Chile. In June 1999, two executives at the Planeta Publishing Company in Chile were arrested as part of these proceedings, although charges were later dropped. Journalist Matus fled the country. In 2001, CPJ filed an amicus curiae brief in this case arguing that that journalists should never face criminal liability for what they write, broadcast, or publish.¹³ The Commission ruled that she was the “victim of censorship on account of her ‘Black Book of Chilean Justice’, and that her books were seized by judicial order and were out of circulation for more than two years.” These actions, the Commission opined, violated Article 13 (freedom of thought and expression) and Article 21 (right of property) of the American Convention.¹⁴ In 2005, the IACtHR ruled in favor of Alejandra Matus.