Relevant Laws
Penal Code
Changes to the Penal Code were enacted in March, but none altered existing
provisions on calumny, insult and defamation.
Art. 489 specifies that calumny is the false accusation of a crime, and that insult is
any other expression made to discredit, dishonor or disparage another person, or
any other action carried out for the same purpose.
99
Art. 490 distinguishes serious and minor insults. Serious ones include imputations
of a vice or moral fault that can considerably prejudice the victim’s reputation,
credit or interests, while minor insults are defined as attributing to others deeds,
nicknames or physical defects that do not compromise the victim’s honor.
Art. 491 provides that calumny is punishable by prison for six months to two years
and a fine if committed at a meeting or public place, or in presence of more than 10
persons; by means of writings, printed or not, fixed images or emblems, distributed
or sold, offered for sale or exposed to public view, or, where non-published
writings are involved, if sent or communicated to others, including letters.
Art. 492 states that those who make calumnious statements privately or in the
presence of fewer than 10 persons, are subject to punishment of one to six months
in prison and a fine.
Art. 493 provides that calumny of authorities is punishable by one to three years in
prison and a fine; and that insults of authorities that do not qualify as calumny but
are serious are punishable by prison of six months to two years and a fine.
Art. 495 provides that a person guilty of grave but non-calumnious insult, by word
or deed, in writing, imaging technique or emblem, in any of the circumstances
specified in Art. 491 is punishable by prison for three to six months and a fine;
and, as outlined in Art. 492, by imprisonment of up to three months and a fine.
Art. 501 provides that those guilty of any kind of insult, not covered by the
previous articles, by damaging another’s reputation, through communication with
several persons, or individually, will be punished as perpetrators of defamation.
The applicable penalty consists of three months to one year of prison and a fine.
100
MEXICO
Population: 110.6 million
Press Freedom Rating: Not Free
Conditions deteriorated rapidly for journalists. Freedom
House reported that Mexico experienced the sharpest
drop in press freedom, as drug lords threatened and
killed reporters in increasing numbers. Freedom House
lowered its ranking from Partly Free to Not Free.
Defamation, though no longer a federal offense, was still criminalized in many
Mexican states. But the state of Veracruz was hailed by human rights groups for
moving to pass legislation to decriminalize it.
"The approval of the bill to decriminalize defamation by consensus is a
breakthrough in persuading the Mexican Government to comply with Human
Rights Committee recommendations," said Article 19 Executive Director Agnes
Callamard, in a statement.
Lydia Cacho was named World Press Freedom Hero at the International Press
Institute’sWorld Congress in September. A well-known social activist, author and
journalist, Cacho’s investigative journalism has often landed her in hot water with
the authorities. She was acquitted in 2007 on criminal defamation charges in a
2005 case in which she alleged a businessman was part of a child pornography
ring. She was illegally detained, and it later emerged that high-ranking persons --
including a former attorney general, a government minister and police officials --
orchestrated her arrest by falsifying documents. In 2009, Mexico’s National
Human Rights Commission investigated Cacho’s detention and determined that her
accusations of torture were true. She continued to receive threats and faced
harassment throughout 2010. In May, armed gunmen stormed Cacho’s center for
abused women and threatened her staff.
Relevant Laws
Defamation and insult were decriminalized at the federal level and removed from
the Federal Penal Code in 2007. State governments were required to follow suit,
but this had not yet happened in a large number of states.
101
According to the Article 19 organization, as of 2009, 21 Mexican states continue to
criminalize defamation: Baja California, Baja California Sur, Campeche, Coahuila,
Colima, Durango, Guanajuato, Hidalgo, State of México, Morelos, Nayarit, Nuevo
León, Puebla, Querétaro, San Luis Potosí, Sonora, Tabasco, Tlaxcala, Veracruz,
Yucatán and Zacatecas.
In the State of Baja California Sur, for example, Art. 342 of the state’s Penal Code
imposes prison sentences of up to six years for defamation. In Tabasco, Art. 166 of
the state Penal Code provides that defamation is punishable by six months to three
years in prison. Other states have made considerable progress. In Chiapas, for
example, penalties for defamation were increased in 2004, but the offense was
removed from the Penal Code in 2007.
102
PERU
Population: 29.4 million
Press Freedom Rating: Partly Free
In June 2010, the Supreme Court overturned a decision by
a lower court, in which journalist Alejandro Carrascal
Carrasco was convicted of “aggravated defamation” and
sentenced to a year in jail. Carrasco, editor of Nor Oriente,
was released after six months. The case stems from several articles by Carrasco in
2005, allegimg corruption in local educational institutions.
Also in June, radio reporter Oswaldo Pereyra Moreno was convicted of
“criminal defamation” and sentenced to a year in prison and fined $3,500. Moreno
was host of Radio Macarena’s “Hora 13.” In 2009, he aired a show about an
illegal abortion given to a 14-year-old girl at a pharmacy. The girl was unnamed,
but her stepfather was, prompting him to file charges against Moreno.
Peruvian blogger Jose Alejandro Godoy was handed a stiff sentence in October
for articles on his web site Desde el Tercer Piso (From the Third Floor) alleging
government corruption. Godoy got a three-year suspended sentence, 120 days of
community service, and ordered to pay damages of more than $100,000. Media
NGOs were outraged by the ruling. Freedom House issued a statement, saying that
“such criminalization is incompatible with the obligations to protect freedom of
expression” in the American Human Rights Convention.
Penal Code
Peru abolished the crime of desacato (previously prohibited by Art. 374, which
imposed prison sentences for offense of public officials) in May 2003, at least
partly thanks to pressure from the Inter-American Human Rights Commission.
Insult, calumny and defamation remain criminal offenses. Art. 130 provides that
anyone who offends or insults another person with words, gestures or actions, shall
be punished with community service of 10 to 40 days or with a fine.
Art. 131 specifies that anyone who falsely attributes a crime to another person
shall be punished with a fine.
103
Art. 132 prohibits defamation, defined as attributing to a person a deed, quality or
conduct that can prejudice the person’s honor or reputation, in front of several
persons, together or separately, but in a manner that permits the news to be spread.
The applicable penalty consists of imprisonment up to two years and a fine. Where
the defamatory communication refers to the offense outlined in Art. 131, the
applicable penalty consists of imprisonment between one and two years and a fine.
Where the offense is committed in a book, the press or any other communication
medium, the penalty consists of imprisonment of one to three years and a fine.
Art. 133 outlines several acts that do not qualify as insult or defamation, including
statements made in the context of legal proceedings, literary, artistic or scientific
critiques, or commentaries or information that contain unfavorable opinions about
a public official in the performance of his or her duties.
104
URUGUAY
Population: 3.4 million
Press Freedom Rating: Free
Although Uruguay decriminalized defamation and libel in
2009, a public prosecutor nonetheless called for a two year
prison sentence against journalist Alvaro Alfonso in August
2010, alleging he libeled a former Congressman in his book
“Secrets of the Communist Party.” The prosecutor also demanded seizure of all
copies of the book, published in 2008. Robert Rivard, Chairman of the Inter
American Press Association’s Press Freedom Committee, said he was surprised
"that there are still public prosecutors calling for journalists to be sent to jail, when
in June last year a law was enacted which made defamation and libel no longer
criminal offenses when what is referred to are matters of pubic interest and public
personages, as is evident in this case."
The “actual malice” law enacted in 2009 went into force in July, when an
appeals court overturned a decision by a lower court on a defamation charge
against a reporter. In March 2010, Tres Puntos editor Ricardo Morales was
convicted of libeling a deputy police officer in reporting on police involvement in
drug smuggling. The decision by the higher court, based on the new legislation,
ruled: “The potential harm of public statements against a public official concerning
his or her work in themselves cannot curtail press freedom; such freedom would
not exist if the press were to be inhibited from publishing news affecting the
reputation of a public official.”
In February, Channel 10 reporters Ignacio Alvarez and Gabriel Pereira were
ordered to pay $5,000 damages to a judge after conviction for causing her “moral
harm.” The case was over a 2005 report titled “The Other Side of Child Abuse.”
The court claimed it used “improper” words in reviewing a case tried by the judge.
Relevant Laws
Penal Code
Art. 138, that previously outlawed crimes against the life, physical integrity,
liberty or honor of foreign heads of state or their diplomatic representatives, no
105
longer contains language forbidding insults to honor. The old law imposed prison
sentences of two to nine years for such offenses.
Art. 173, which prohibits insult of public authorities, now applies only where the
authority of public officials is damaged by way of “real offenses executed in the
presence of the official or in the place where the official carries out his or her
functions,” or by way of “open disobedience to the legitimate mandate of a public
official.” It no longer specifies that “shouting offensive gestures” qualifies as
insult, and instead notes that nobody shall be punished for expressing disagreement
with an authority’s mandate.
Art. 336, which previously outlined narrow circumstances in which truth could be
asserted as a defense to defamation and slander charges, now states that defendants
shall be exempt from liability where their expression covers matters of public
interest, involving both public officials and public persons who, because of their
profession or activity, enjoy a social relevancy, or any person who has chosen to be
involved in public affairs. The exemption does not apply when it is proven that
there was actual malice in insulting a person or violating a person’s privacy.
Art. 333 provides that anyone who attributes a certain fact to a person that, if true,
could give rise to legal or disciplinary proceedings against him or expose him to
public hatred or contempt, shall be punished with four months to three years of
imprisonment, or a fine.
Art. 334 provides that anyone who, beyond the cases envisioned in the preceding
article, offends in any way by word of mouth, in writing or by deed the honor,
rectitude or decorum of a person, shall be punished with three to 18 months of
imprisonment, or a fine.
Art. 335 specifies that the above crimes are regarded as more serious, with a
consequent increase in penalties, if they are committed in public documents, in
writings, drawings or paintings disseminated publicly or exposed to the public.
106
VENEZUELA
Population: 29 million
Press Freedom Rating: Not Free
At the end of the year, lawmakers expanded the
Social Responsibility broadcast law to include the
Internet. The controversial amendment also added
language that banned information that “incites hatred,
foments anxiety,” or disrespects authorities.”
In November 2010, charges against journalist Francisco Perez were dropped. He
had been convicted of “criminal defamation” in June and barred from working as a
reporter for nearly four years. He was also fined $21,000. Charges were brought
against Perez for his article in El
Carabobeño,
accusing the mayor Valencia of
nepotism.
Guillermo Zuloaga, president of private TV network Globovision, was arrested
in March and charged with “spreading false news” based on remarks he made
about the President. Two months later, he was rearrested with his son on trumped
up charges related to a car dealership he owned. He fled to the United States.
Relevant Laws
Penal Code (2005)
Art. 147 penalizes offending, in writing, speech, or by any other means, the
President of the Republic (or whoever is fulfilling the President’s duties). The
punishment consists of imprisonment of six to 30 months if the offense is
considered serious, and of three to 15 months if considered minor. When the
offense is committed in public, the penalty is increased by one third.
Art. 148 penalizes the same offense against the Vice President, any of the Supreme
Court justices, a Cabinet Minister, state governor, National Assembly deputy, the
metropolitan mayor, National Electoral Council rector, the Ombudsman or
Attorney General, the Comptroller General, or any members of the Military High
Command. The applicable penalties are half of those specified in the preceding
article, and one third when mayors are targeted.
107
Art. 442 specifies that anyone who, communicating with others, accuses another
person of a specific act that exposes the person to public contempt or hatred, or
offends his honor or reputation, shall be punished with imprisonment of one to
three years and a fine. If committed in a public document or in writings, in
drawings displayed or released to the public, or by other means or forms of
publicity, the penalty ranges from two to four years’ imprisonment and a fine.
Art. 444 prohibits offending the honor, reputation or dignity of another person in
communications with other people. The offense is punishable by imprisonment of
six months to one year, and a fine. When the offense is committed in the presence
of the offended person, even if that person is alone, or by way of any written media
that the offender has directed, or in a public place, the penalty may be increased by
one third. It may be increased by one half if the offended party is present when the
communication receives publicity. When the offense is committed by the means
specified in Art. 442, the applicable penalty consists of imprisonment of one to two
years and a fine.
Art. 445 provides that the offense outlined in Art. 444 will be punished by 15 to 45
days’ imprisonment where it targets any person lawfully charged with a public
service, in that person’s presence and by reason of his or her public service. Where
publicity is involved, the penalty may range from one to two months’
imprisonment.
108
Afghanistan
India
Singapore
Cambodia
Indonesia
Thailand
China
Malaysia
Vietnam
Fiji
Pakistan
OVERVIEW OF ASIA/PACIFIC
Much of the region remained intent on gaining control over the blogosphere, which
along with social media platforms, continued its meteoric rise.
Vietnam came down hard on bloggers, and went so far as to aid hackers in
launching cyberattacks. In China, three bloggers were sentenced to jail, after their
online support for a woman who alleged her daughter had been gang raped and
killed by police associates, but whose appeals to authorities were ignored.
In many countries, though, it was still the traditional media that were the main
targets. In Indonesia, eight newspapers together had to fight a multimillion dollar
suit against them by a citizen who objected to how he was characterized in an
article on illegal gambling. And in Afghanistan, a private TV station was shut for
“endangering national unity.”
Some crackdowns came new media laws. In Fiji, a highly criticized media decree
was issued, giving weighty authority to a media tribunal. In Pakistan, amendments
threatened further restrictions for defamation and provided for very large fines.
In Thailand, however, some relief came when an emergency decree that was in
place part of the year was partially lifted. It prohibited media from “causing panic.”
-- P. McC.
109
AFGHANISTAN
Population: 29.1 million
Press Freedom Rating: Not Free
Afghan media continued to be controlled and manipulated
by the Taliban and regional warlords, as well as by
influential citizens from surrounding countries.
In April, former journalist Dr. Ahmed Ghous Zalmai received a presidential
pardon, along with mullah Qari Mushtaq and Ateef Noori, a printer. The three
were serving a 20-year prison sentence imposed on them in 2008, after they
published the Koran into Dari/Farsi without including the original Arab text, a
violation of Islamic law. Zalmai’s wife and children sought refuge in Pakistan after
being attacked because of her husband’s crime.
In July the government closed down private television station Emroz for
“endangering national unity.” It also banned two programs on other stations for
being un-Islamic. Emroz is known for its anti-Iranian and anti-Shiite stances.
Relevant Laws
Afghanistan’s legal environment consists of a complex mix of sources of authority,
including civil and penal codes, Islamic Sharia law, and tribal and customary law.
The Constitution specifically provides that, where the Constitution or other laws do
not address a given situation, courts shall adjudicate matters under Hanafi
jurisprudence -- one of Sunni Islam’s four schools of jurisprudence.
Mass Media Law
The law has been repeatedly amended. The latest draft amendments were approved
by the Parliament in May 2007 but vetoed by President Hamid Karzai that
December. By September 2008, Parliament voted to override the veto. But,
according to the State Department, the amendments had not yet been enacted as of
late 2009. If enforced, they would impose additional restrictions on content,
including a prohibition on propagating religions other than Islam.
110
Art. 31 of the current version of the law prohibits mass media publication of
subjects “contrary to principles of Islam and offensive to other religions and sects,”
or that “lead to dishonoring and defamation of individuals.”
Penal Code of 1976
Art. 241 prohibits publicly insulting the Afghan nation, flag or state symbol. The
offense is subject to prison terms of one to five years.
Art. 242 specifies that insulting the President is punishable by one to five years in
prison. When the insult is in the President’s presence, the applicable prison penalty
ranges from five to 15 years.
Art. 243 prohibits insulting foreign heads of state and official representatives of
foreign states in connection with their duties. The offense is punishable by
imprisonment of 24 hours to one year or a fine.
Art. 246 imposes imprisonment of three months to one year, a fine, or both, for
insulting the Grand Assembly, Parliament, government, the armed forces, courts or
other state authorities.
Arts. 248 and 294 both prohibit publicly insulting public officials in connection
with or during the performance of their duties. The offense is punishable by
imprisonment of three to six months, a fine, or both.
Art. 346 defines defamation as the public “attribution of a certain incidence to
someone else,” which, if true, would “degrade” the person in the eyes of the
people. The applicable punishment consists of imprisonment from one to two
years, a fine, or both.
|