When criticism becomes a crime

Introduction

BUENOS AIRES — Imagine you’ve just broken a story about how the president’s cronies, including members of the Supreme Court, made a mint when the government sold off state companies. You feel pretty good, right? But instead of getting a Pulitzer, you are indicted for “insulting” a Supreme Court justice.

During the trial against you, you can’t argue that your story was true. The judge filing the charges against you is only required to prove that he was offended by what you wrote. You are convicted and sentenced to one month in jail. When you appeal the conviction to the Supreme Court, one of the judges deciding the case is the same judge who filed the initial charges against you. The Supreme Court ratifies the charges.

It sounds like a journalist’s nightmare, but it happened to Argentine columnist and investigative reporter Horacio Verbitsky, who published a book in 1992 called “Robo Para la Corona” (I Rob for the Crown) about corruption in the government of President Carlos Menem. Verbitsky was prosecuted for “desacato,” or showing contempt for a public official.

Verbitsky appealed the Argentine Supreme Court’s decision to the Inter American Human Rights Commission of the Organization of American States (OAS). Verbitsky claimed that the desacato law violated international legal safeguards. Fearing the Commission would rule against it, Argentina agreed to repeal the law, and the conviction against Verbitsky was reversed. But desacato laws remain on the books in most countries in Latin America, and defamation is generally defined as a criminal offense in every country, including Argentina. These laws make no allowance for inadvertent errors made while reporting in good faith.

Journalists, lawyers and academics from throughout Latin America gathered in Argentina in June to discuss the problem. The Committee to Protect Journalists and the Argentine press group Periodistas, founded by Verbitsky to fight for press freedom in that country, organized the meeting. It’s purpose was to draw attention to the ways that criminal defamation laws are used to stifle the work of the press in Latin America, and to develop a strategy for ensuring that the region’s laws are brought into accordance with international standards. The conference was attended by a delegation from the Miami-based Inter American Press Association, the executive director of Human Rights Watch/Americas, and the vice-president of the Inter American Commission of Human Rights. It was supported by a grant from the Tinker Foundation.

While jail sentences in criminal defamation cases are relatively rare in the Americas, prosecutions are not. In 1997, the CPJ documented the prosecution of two New York Times reporters in Mexico charged with defaming two state governors in an article about the drug trade. In 1999, the group documented the conviction of Argentine reporter Eduardo Kimmel, who received a one-year suspended prison sentence and was fined $20,000 for insulting a judge. In another 1999 case, charges were brought against Chilean journalist Alejandra Matus, who was forced to flee into exile to avoid arrest after her book was banned because it criticized a Supreme Court judge.

The good news is that there is growing awareness among journalists in Latin America that these punitive press laws must be repealed. Last December, after an intense international campaign, Panama’s president Mireya Moscoso repealed some of her country’s most onerous “gag” laws and pledged to repeal other laws that limit press freedom. In Argentina, Periodistas has put forward a proposal to decriminalize defamation in the case of public officials and introduce the “actual malice” standard into Argentinean law. (Under this standard first articulated in 1964 by the U.S. Supreme Court in The New York Times v. Sullivan case plaintiffs must prove not only that published information is false and defamatory, but also that the journalist who published it knew or should have known it was false at the time of publication.)

In late 1998, with support from CPJ and other international press freedom organizations, the OAS created the Special Rapporteur for Freedom of Expression, charged with promoting and protecting press freedom throughout the hemisphere. Santiago Canton, an Argentine lawyer who holds the position, argued in his annual report on the state of press freedom in the Americas, presented last month in Washington, D.C., that laws penalizing expression directed at public officials are incompatible with the American Convention on Human Rights. He called on governments to repeal such laws.

The conferees at the criminal defamation conference passed the Buenos Aires Declaration affirming that journalists should never be “criminally prosecuted for what they publish, transmit, or express.” The declaration also endorsed the work of the Special Rapporteur, expressed support for the new law put forward by Periodistas which would decriminalize defamation in the case of public officials, and promised to defend journalists who are being criminally prosecuted for their work.

Ann Cooper, CPJ executive director, noted in remarks opening the conference, “Political leaders and government officials in the Americas are hardly unique in believing that they need [criminal defamation] laws to protect themselves from criticism…, But we think it is important to start here, in the Americas, because we think this is where journalists can make the first crucial progress toward the elimination of these laws.”

Argentina could be the first country to do so. Speaking at the conference, Argentine Minister of Justice Ricardo Gil Lavedra offered support for the proposed legal reform, noting that “the protection of information related to the public interest represents a great responsibility for the state.”

It’s a responsibility that few states in Latin America take seriously. The press in Latin America has played a vital role in consolidating democracy during a period of democratic transition. If democracy is to flourish in Latin America, the work of the press in exposing government corruption and malfeasance is essential; it must be protected, not punished.