Setbacks and Tension in the Inter-American Court of Human Rights

Original article © 2013 Media Law Resource Center, Inc.

For the first time, the Inter-American Court of Human Rights determined that a criminal conviction for the crime of slander and libel does not affect freedom of expression.

Just a few weeks ago, at the MLRC London Conference I was conversing with European and American colleagues about the advances and setbacks of international jurisprudence regarding freedom of press and freedom of expression. Some delegates were worried about the European Court of Human Rights’ recent free expression jurisprudence and noted that, in contrast, the Inter-American Court of Human Rights seemed to be making better decisions. They asked whether the IACHR was, in fact, the stronger protector of freedom of expression.

In that moment, I told them I was not that optimistic, because the Inter-American Court has been making statements suggesting a possible change of course, especially in regard to criminal defamation.

Unfortunately, the Court’s recent ruling in the case of Mémoli v. Argentina has confirmed my lack of optimism: for the first time, the Court ruled that a criminal defamation conviction does not violate freedom of expression, as protected by Article 13 of the American Convention of Human Rights. This ruling marks a serious and notable setback.

Background

The case is quite simple. In San Andrés of Giles, a city in the Province of Buenos Aires, Argentina, the municipal cemetery gave a cooperative control over the leases and titles of graves that had been public property. This coop set up contracts with third parties for the purchase and sale of these previously public sites.

The defendants, publisher Carlos Mémoli and Pablo Mémoli, a journalist, publicly denounced the taking of this property. They used strong language against the directors of the coop and were prosecuted and convicted of criminal defamation for doing so. In 1994, they received suspended prison sentences under Argentinian law for the crime of slander and libel. Following their conviction, there was a civil trial for the payment of indemnities, a process which has been taking place for more than 16 years.

In all the Inter-American Court’s prior cases, criminal defamation convictions were considered a violation of freedom of expression. For example, in the Herrera Ulloa v. Costa Rica case in 2004, the Court ruled that the conviction of journalist Mauricio Herrera Ulloa be annulled. The Court made similar requests in other cases as well. For example, in the Canese v. Paraguay case in 2004, the Court considered the process of convicting Ricardo Canese, in itself a violation of his freedom of expression.

However, more recently in the Kimel vs. Argentina case in 2008, Court watchers began to see a change, due to what many suspect are tensions created by diverging views within the Court. Reading the individual decisions of the judges in that case showed that the judges were no longer unanimous that criminal defamation convictions are incompatible with freedom of expression. Yet, even in the Kimel case, and others that followed, it was understood by the majority of the Court that criminal defamation convictions violated freedom of expression.

In Kimel the Court said the crime of slander and libel under the Argentine Penal Code was contrary to the American Convention, but in the case of Mémoli, where the conviction was for precisely the same crime, the Court found no violation of the American Convention. Furthermore, the Court gave no reasonable explanation for the change in criteria.

It should be emphasized that even with this worrisome decision, the Court continues to give maximum protection to speech about public officials on matters of public interest. In other words, the Court’s principles set in the past, are still applicable: “desacato” (insult laws) or statements about public officials’ affairs should not be penalized.

While that is positive, what is problematic in the Court’s Mémoli ruling is the narrow interpretation of what is or is not in the public interest, as compared to previous cases.

The Mémoli case has deepened the tensions within the Court, first seen in the Kimel decision. In Memoli, four of the Court’s seven judges found the conviction to be compatible with freedom of expression. Only three found the conviction to be a violation of that fundamental right.

The Mémoli decision is undoubtedly a setback and a wake up call about the divisions within the Court. It also shows the need of the Court to regain its legitimacy and reputation as a protector of freedom of expression, so necessary in our region today.

Eduardo Bertoni is Global Clinical Professor at New York University School of Law and Director of the CELE, the Center for Studies on Freedom of Expression at University of Palermo School of Law in Argentina.