ECUADOR: Concern over conviction of journalist, directors and media outlet

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[Washington D.C., 21 July 2011] — The Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR) expresses its concern regarding the Judgment issued on July 20 by a provisional judge in Ecuador against the newspaper El Universo, three members of its board of directors, and the journalist Emilio Palacio. The conviction, for the crime of aggravated defamation against a public official, sentences the board members and the journalist to three years in prison and the payment of a total of US$ 40 million in damages for the personal benefit of President Rafael Correa: $30 million to be paid jointly by the convicted individuals and $10 million to be paid by the legal entity that owns the media outlet. Additionally, they must pay $2 million to the President's attorneys in legal fees. The Office of the Special Rapporteur considers this decision contrary to regional freedom of expression standards and believes that it generates self-censorship and a notable chilling effect that impacts not only the individuals convicted but Ecuadorian society as a whole.

The case stemmed from an opinion column published by Palacio on February 6, 2011, entitled "No to Lies" ("No a las Mentiras"), which questioned in harsh terms the decisions allegedly made by President Correa during the events of September 30, 2010. The President categorically rejected Palacio's allegations and presented a criminal complaint on March 21, 2011, in the belief that his reputation had been harmed. The President asked the trial court judge to sentence the reporter and the three board members to the maximum term of three years in prison, and the payment of $50 million in compensation. He also requested that the newspaper's parent company pay $30 million in compensation.

Articles 489, 491, and 493 of TITLE VII of the Ecuadorian Criminal Code, entitled "CRIMES AGAINST HONOR," establish, inter alia, enhanced penalties for persons who make "a false criminal accusation" or "any other expression made to discredit, dishonor, or disparage" an "authority." In particular, under Article 493, persons who "make defamatory accusations against an authority" may be punished by a fine and one to three years in prison.

The criminal proceedings for aggravated defamation lasted four months. The trial, which was attended personally by the President, took place on July 19 in the city of Guayaquíl, on a day when groups of protesters supportive of the government insulted the defendants and a witness as they exited the tribunal. Prior to the hearing, the journalist Palacio had resigned from the newspaper in an effort to prevent a multi-million dollar judgment that could force the newspaper to close. In addition, on the day of the hearing, defense lawyers for El Universo offered President Correa a public rectification of the column in question on the terms that the President considered appropriate. The President rejected the settlement, however, and asked to continue the proceedings. According to the information received, before the hearing the government issued several statements in which it disparaged the daily El Universo, its board members, and the journalist Emilio Palacio. The provisional judge published his decision shortly before the end of his time in office as temporal judge of the 15th Court of Penal Guarantees. The President's lawyer indicated that he would appeal the decision in the belief that the monetary damages awarded to the President should have been in the amount of $80 million dollars.

The existence and application of laws that criminalize expressions offensive to public officials, or desacato laws, in all of their forms, are contrary to inter-American standards in the area of freedom of expression. The Inter-American Commission on Human Rights, based on the American Convention on Human Rights, established more than a decade ago that the use of the criminal law to sanction expressions about public officials violates article 13 of the American Convention, which protects freedom of expression. Such sanctions are unnecessary, disproportionate, and cannot be justified by any imperative social interest; they also constitute a form of indirect censorship given their intimidating and chilling effect on the discussion of matters in the public interest.

Principle 11 of the IACHR's Declaration of Principles on Freedom of Expression maintains that "Laws that penalize offensive expressions directed at public officials, generally known as 'desacato laws,' restrict freedom of expression and the right to information." Also, Principle 10 of this Declaration establishes that "the protection of a person's reputation should only be guaranteed through civil sanctions in those cases in which the person offended is a public official, a public person or a private person who has voluntarily become involved in matters of public interest. In addition, in these cases, it must be proven that in disseminating the news, the social communicator had the specific intent to inflict harm, was fully aware that false news was disseminated, or acted with gross negligence in efforts to determine the truth or falsity of such news."

For its part, the Inter-American Court has established that vague and ambiguous defamation laws cannot be used to impute responsibility to those who have referred to public officials. At the same time, in evaluating the application of criminal law to those who criticize or circulate information that compromises high public officials, the Inter-American Court has observed that "[i]n a democratic society political and public personalities are more exposed to scrutiny and the criticism of the public. This different threshold of protection is due to the fact that they have voluntarily exposed themselves to a stricter scrutiny. Their activities go beyond the private sphere to enter the realm of public debate. This threshold is not based on the nature of the individual, but on the public interest inherent in the actions he performs."

In a decision of enormous importance, the Inter-American Court held that "[i]n the domain of political debate on issues of great public interest, not only is the expression of statements which are well [received] by [...] public opinion and those which are deemed to be harmless protected, but also the expression of statements which shock, [offend] or disturb public officials or any sector of society."

The Inter-American Court has also established, with regard to eventual civil sanctions, that civil judgments in cases involving freedom of expression must be strictly proportional so as not to have a chilling effect on said freedom, since "the fear of a civil penalty, [in light of a] claim [...] for [...] very steep civil [damages], may be, in any case, equally or more intimidating and inhibiting for the exercise of freedom of expression than a criminal punishment, since it has the potential to [compromise] the personal and family life of an individual who accuses a public official, with the evident and very negative result of self-censorship both in the affected party and in other potential critics of the actions taken by a public official."

Based on the foregoing considerations, the Office of the Special Rapporteur recalls that high public officials are not only obligated to be more tolerant of criticism, they also have alternative means of enormous effectiveness in order to express their opinions about information or ideas that they consider unjust or offensive. In addition, the decision of July 20 constitutes a grave warning to any citizen or media outlet that has opinions or information about public officials that could be considered offensive, thus obstructing processes that are natural and necessary in any democracy. Finally, the sentence, if confirmed, would represent an economic burden that could threaten the very existence of the newspaper El Universo.

For these reasons, the Office of the Special Rapporteur exhorts the State of Ecuador to adapt its domestic legislation and practice to existing doctrine and jurisprudence in the area of freedom of expression, and calls on the competent judicial authorities to resolve the case of the newspaper El Universo, its board members, and the journalist Emilio Palacio in conformity with such international human rights standards.

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