ZIMBABWE
Population: 12.6 million
Press Freedom Rating: Not Free
Three days after an article appeared in November
alleging election fraud, Standard reporter Nquobani
Ndlovu was charged with criminal defamation.
Interrogators wanted to know the story’s source. It
alleged that officials masterminded police recruitment to
insure a loyal force ahead of elections. Ndlovu was
released on $100 bail. The government appealed his
release, but lost. Ndlovu awaited trial at year’s end.
Nevanji Madanhire, Ndlovu’s editor, was charged with criminal defamation in the
same case.
An arrest warrant was issued for Wilf Mbanga, publisher of The Zimbabwean,
for a 2008 article alleging a Zimbabwe Electoral Commission official was
assassinated. Mbanga was charged with publishing material “prejudicial to the
state.” The Zimbabwean is edited in Britain and Mbanga lives in London. Mbanga
said the story never appeared in his paper.
In September, an arrest warrant was issued for Harare Mayor Muchadeyi
Masunda after he failed to appear in court. Along with eight council members,
Masunda was charged with criminal defamation of businessman Philip Chiyangwa.
The case stemmed from an alleged leak, placing Chiyangwa at the center of a
major land selling scam. Five journalists were also subpoenaed: Vincent Kahlya,
editor of Zimbabwe Independent; Nevanji Madanhire, editor of the Standard;
Standard reporters Feluna Nieya and Jennifer Dube; and freelancer Stanley Gama.
Charges were dropped in November.
Relevant Laws
The Public Order and Security Act (2002) previously criminalized publishing
inaccurate information, information prejudicial to the State, and insulting the
President. According to the Public Order and Security Amendment Act
(2007), these provisions have been repealed since the offenses are included in
the Criminal Law (Codification and Reform) Act.
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Criminal Law (Codification and Reform) Act (effective July 2006)
Art. 31: Publishing or Communicating False Statements Prejudicial to the
State: This article imposes liability on anyone, inside or outside Zimbabwe, who
publishes or communicates a wholly or materially false statement, with the
intention or realizing there is a “real risk or possibility” of undermining public
confidence in a law enforcement agency, the prison service or the defense forces of
Zimbabwe, regardless of whether it actually undermines that confidence.
Similarly, regardless of intent or awareness of consequences, this article
imposes liability on anyone who publishes or communicates a wholly or
materially false statement that undermines public confidence in the agencies
specified above, if the person knows the statement to be false, or does not have
reasonable grounds for believing it to be true.
Offenders are considered guilty of “publishing or communicating a false
statement prejudicial to the State” and liable to a fine up to or exceeding level
14* (Z$5 million) imprisonment for up to 20 years, or both.
Art. 33: Undermining Authority of or Insulting President: This Article
prohibits public, intentional statements about the President or an acting
President “with the knowledge or realizing that there is a real risk or possibility
that the statement is false” and that it “may” engender feelings of hostility toward,
or cause hatred, contempt or ridicule of the President or an acting President, or the
President’s office. The law specifies that “statements” include acts or gestures. It
also criminalizes “abusive, indecent or obscene” statements about the President or
the President’s office. Persons convicted of such offenses are guilty of
“undermining the authority of or insulting the President,” and subject to penalties
consisting of a fine up to level 6* (Z$400,000), imprisonment for up to one year, or
both.
Art. 95: Criminal insult: This article provides that any person who, by words
or conduct, “seriously impairs the dignity” of another person, is guilty of
criminal insult, if the offender intended to impair the other’s dignity, or realized
there was “a real risk or possibility” that this would occur. It must be proven that
the plaintiff actually felt insulted or degraded as a result. In case of conviction, the
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offender is liable to a fine up to level 6* (Z$400,000), imprisonment for up to one
year, or both.
Art. 96: Criminal Defamation: This article prohibits publishing statements,
with the intent to harm another’s reputation, and knowing they are false or
realizing there is “ a real risk or possibility” that they are false. It is sufficient
for the published statement to “create a real risk or possibility of causing harm” to
the other’s reputation. Offenders are subject to a fine up to level 14* (Z$5 million),
imprisonment for up to two years, or both.
This article further specifies that a court may consider several factors to decide
whether the statement at issue is “sufficiently serious” to constitute a crime,
including the extent to which the accused has persisted with allegations in the
statement, the extravagance of any allegations in the statement, the nature and
extent of publication of the statement, whether and to what extent the interests of
the State or any community have been detrimentally affected by the publication.
Art. 177 Undermining of police authority: This article prohibits false
statements with the intention, or realizing there is a risk or possibility, of
engendering “feelings of hostility,” “contempt, ridicule or disesteem” toward a
police officer or the police force. Offenders are subject to a fine up to level 7*
(Z$800,000), imprisonment of up to two years, or both.
*These fines are specified in a schedule attached to the Act. Given the
redenomination (and inflationary volatility) of Zimbabwe’s currency in
February 2009, it is unclear what amounts would actually be imposed.
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Argentina
Cuba
Peru
Brazil
Ecuador
Uruguay
Colombia
Mexico
Venezuela
OVERVIEW OF LATIN AMERICA/CARIBBEAN
New media laws came into force in many Latin American countries in 2010, some
quite controversial.
In Argentina, defamation was decriminalized in a new media law package, but
critics noted that a media council to administer it consisted of political appointees.
A Social Responsibility media law in Venezuela was amended to include language
broadening insult. Opponents said its terms could be used against the press.
There was a sharp decline in press freedom in Mexico as drug lords increased
attacks on reporters. As a result, Freedom House lowered Mexico’s press freedom
rating to “Not Free.” Yet, Mexico made small but important strides on defamation.
The State of Veracruz started to decriminalize the offense, raising hopes that other
states would follow.
Lawmakers in Ecuador debated a new media law that critics warned would restrict
press freedom. Meanwhile, the same government that routinely filed charges of
“insult,” “slander,” “libel” and “defamation,” launched a campaign of its own of
TV ads against the media, calling reporters “untrustworthy,” “liars,” etc.
-- P,McC.
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ARGENTINA
Population: 40.6 million
Press Freedom Rating: Partly Free
Amendments to the press law decriminalizing defamation,
libel and slander went into effect in 2010. The World Press
Freedom Committee applauded the changes, although took
issue with some of the reforms, including Art. 111, which
“preserves the antiquated legal concept that imposes the burden of proof on the
defendant.” Despite the reforms, the government still limited press freedom. Part
of the new law allowed for the creation of a politically appointed media regulatory
council with full authority to interpret and implement the code. By the end of 2010,
the council had not yet formed.
In August, an appellate court overturned a 2008 decision by a lower court
finding Google and Yahoo guilty of defamation. The case was brought by
Argentine entertainer Virginia Da Cunha, who claimed moral damages after her
image and name were used in connection with a sexually explicit web site without
her consent.
In its new ruling, the appellate court said: “ The mere possibility that a [defendant]
search engine produces search results from third party sites that yield offensive and
scandalous information about an individual, which may cause injury or damage to
that person’s image or reputation, does not by itself mean that said individual has a
right to seek damages directly against the search engines.”
Relevant Laws
Penal Code
Art. 109 now provides that defamation or falsely accusing a particular person of
committing a specific crime that is grounds for a public trial, shall be punished by
a fine from 3,000 to 30,000 Argentine pesos (approx. US$780-7,800). It also
specifies that under no circumstances shall expressions relating to matters of public
interest constitute defamation.
Art. 110 now specifies that anyone who intentionally dishonors or discredits
someone else shall be sanctioned with a fine of 1,500-20,000 Argentine pesos
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(approx. US$390-5,180). It also specifies that under no circumstances shall
expressions relating to matters of public interest constitute insults to honor.
Art. 111 provides that a defendant, in cases where the expressions are in no way
related to matters of public interest, may only prove the truth of the accusations at
issue in the following cases:
1. If the fact attributed to the offended person should have led to a penal trial;
2. If the plaintiff were to request proof of the accusations directed at him. In these
cases, if the truth of the accusations is proved, the defendant would be exempt
from punishment.
Art. 113 provides that anyone who publishes or reproduces, by any means, the
offensive statements at issue made by another person, will be punished as the
author of the material. However, this is only the case if the content was not
substantially accurately attributed to the relevant source. This section also now
specifies that under no circumstances will expressions relating to matters of public
interest constitute a crime.
Art. 114: When the libel or slander has been spread in the capital and national
territories through the press, its authors shall be subject to the sanctions of this
code and the judge or court shall order, as requested by the accuser, that the editors
insert in their respective printed matter or newspapers, at the expense of the guilty
party, the text of the sentence or a repudiation.
Art. 115: Defamation professed by the civil parties, in briefs, speeches or reports
produced before the courts and not publicized, shall be subject only to
corresponding disciplinary corrections.
Art. 116: When defamation is reciprocal, the court may, according to the
circumstances, declare both or one of the parties exempt from sanction.
Art. 117 provides that someone guilty of insult or defamation is exempt from
punishment if he or she publicly recants, either before answering the complaint or
in the act of doing so. It now also notes that retraction does not signify the accused
has conceded guilt.
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BRAZIL
Population: 195.4 million
Press Freedom Rating: Partly Free
Despite reforms of the press law enacted in 2009, the
government continued to suppress free speech. In September
2010, a state court barred 84 publications from reporting on an
investigation of a regional governor and his re-election
campaign. The ban was later lifted, but it was one of many cases of harassment and
threats to reporters by authorities, many of which involved charges of libel and
defamation.
At the end of the year, blogger Carlos Santos faced 30 charges and nine arrest
orders -- all defamation suits filed against him by politicians. Santos had already
been convicted three times of defamation and acquitted in three other cases.
In May, Franco-Spanish filmmaker Jose Huerta was presented several lawsuits,
including one charge of “criminal defamation” over a documentary he made about
the environmental impact of a mass tourism project being carried out in Brazil by
an Austrian investment group.
In November, a Brazilian court dismissed charges of “defamation” and “libel”
leveled against US journalist Joe Sharkey. The civil suit was filed after Sharkey
blamed the Brazilian air traffic control for a plane crash that he survived, but which
killed 154 other persons. The plaintiff was a widow of a passenger who perished.
Sharkey faced a fine of nearly $280,000.
Relevant Laws
Penal Code
Art. 138: Calumny, defined as falsely imputing the commission of a crime to
someone, is punishable by six months to two years in prison, and a fine.
Art. 139: Defaming someone by imputing to him a fact offensive to his reputation
is punishable by three months to one year in prison, and a fine.
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Art. 140: Insulting someone’s dignity or decorum is punishable by one to six
months in prison or a fine. Where the insult refers to race, ethnicity, religion, place
of origin, advanced age or disability, the punishment ranges from one to three
years in prison and a fine.
Art. 141: The penalties stipulated in this chapter are increased by one third, where
the crimes are committed:
1. against the President of the Republic, or a foreign head of state;
2. against a public official, by reason of his carrying out his duties;
3. in the presence of several persons, or via a medium facilitating the dissemination
of calumny, defamation or insult;
4. against a person more than 60 years old or a disabled person, except in the case
of insult.
Art. 331: Insulting a public official in the exercise of his duties or as a result of
them is punishable by a fine or six months to two years in prison.
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COLOMBIA
Population: 46.3 million
Press Freedom Rating: Partly Free
Attacks by armed groups made the country dangerous for
journalists. Throughout 2010, 175 reporters were part of the
government’s protection program, and the Interior Ministry
sponsored an emergency alert network to enhance journalists’
safety. But government officials were nonetheless also a serious
threat to reporters, many of whom were dogged by insult and defamation suits.
Eight reporters were sued by Gov. Raúl Flórez for articles they wrote for
Violeta Stéreo and La voz de Yopal newspapers about a government investigation
of Flórez. The governor accused the group of “insult” and “defamation,” yet
refused to exercise his right to reply.
By year’s end, a longstanding case against Edinson Lucio Torres had still not
been decided. Torres -- head of the local opposition Polo Democrático party and a
frequent blogger and radio host -- was sued by a senator in 2006 for claiming the
senator had links to paramilitary groups. Torres cited a national newspaper, the
Ombudsman’s office and a nongovernmental organization as his sources.
Relevant Laws
Penal Code (Law 599 of 24 July 2000)
Art. 220 (Insult): A person who makes dishonorable imputations against another
shall be punished by imprisonment from one to three years, and a fine of 10 to
1,000 times the legal monthly minimum wage.
Art. 221 (Malicious Representation/Calumny): A person who falsely imputes to
another conduct that is, under law, considered a crime, shall be punished by
imprisonment of one to four years and a fine of 10 to 1,000 times the legal monthly
minimum wage.
Art. 222 (Indirect Insult and Malicious Representation) provides that those who
publish, reproduce or repeat another’s insult and malicious representations are
subject to the penalties prescribed in the preceding articles.
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Art. 223 (Circumstances Affecting Penalty Severity) specifies that, when the
offenses prohibited in this section are committed via social media or other means
of collective disclosure, or at a public gathering, the applicable penalties are
increased by one sixth to one half. When committed in a letter directed solely to
the victim or only in that person’s presence, the applicable penalties are reduced as
much as half.
Art. 224 (Exemption from Liability) provides that those accused of the offenses
above are exempt from liability if they prove the truth of their imputations. It adds
that this exemption does not apply in two situations:
1. in cases where the imputation concerns punishable conduct for which the person
has been acquitted, or regarding which an investigation or proceedings were
terminated (except where this occurs because of the statute of limitations)*;
2. the imputation involves conduct relating to a person’s sexual life, marital or
family life, or crimes against freedom or sexual formation.
Art. 225 (Retractions) provides that an offender will not be held liable if he or she
voluntarily retracts the statements in question, before a judgment in the first
instance has been issued, if the retraction is published at the cost of the responsible
party, and in the same media and with the same characteristics as the imputation at
issue. No criminal action may be initiated if the retraction or correction is publicly
made before the victim files a complaint.
* As noted, the Constitutional Court in 2009 declared this provision
unconstitutional.
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CUBA
Population: 11.2 million
Press Freedom Rating: Not Free
Independent reporter Calixto Ramón Martínez Arias
was arrested in May while covering a memorial for
dissident Orlando Zapata Tamayon, who died in prison.
Arias was charged with “aggravated insult” and later
charged with assaulting a police officer, although no
eyewitnesses could confirm an attack. Arias was
released pending trial, but picked up again in June for
covering a dissident demonstration.
Juan Carlos Reyes Ocaña, a journalist for news agency Holguín Press, was
arrested and charged on several counts, including “insult.”
Relevant Laws
Penal Code
Art. 144.1 prohibits insulting, defaming or otherwise offending, verbally or in
writing, the dignity or decorum of a public authority or official, or their agents or
assistants, in the exercise of their functions or because of the exercise thereof.
Desacato – contempt -- is punishable by imprisonment of three months to one year
or a fine.
When the offense targets the President of the State Council or of the National
Assembly, members of the State Council or the Council of Ministers, or National
Assembly deputies, the penalty is imprisonment for one to three years.
Art. 204 provides that anyone who publicly defames, denigrates or belittles the
institutions of the Republic, political organizations, the country’s masses, the
nation’s heroes and martyrs, shall be punished by imprisonment of three months to
one year or a fine.
Art. 318 defines defamation as imputing to another, before third parties,
dishonorable conduct, deeds or characteristics that may damage their reputation,
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lower their social standing or the public’s opinion, or expose them to losing the
trust required for their employment, profession or social function. The offense is
punishable by imprisonment of three months to one year or a fine.
Art. 319 prohibits calumny, defined as knowingly disseminating false facts that
discredit another person. It is punishable by imprisonment of six months to two
years or a fine. If the defendant acknowledges, in court, the falsity of the claims,
the penalty may be reduced.
Art. 320 provides that anyone who purposely, in writing or with words, via
drawings, gestures or acts, offends another’s honor, shall be punished by
imprisonment of three months to one year or a fine.
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ECUADOR
Population: 13.7 million
Press Freedom Rating: Partly Free
A divisive communications bill was debated in Parliament
in late 2010. Experts believe its vague language would
further restrict freedom of speech. The government,
meanwhile, continued to crack down on media. President
Rafael Correa encouraged citizens to sue journalists, and
the government sponsored an anti-press ad campaign, including TV slogans like
“nobody believes them,” calling media “ignorant,” “corrupt” and “deceitful.”
In March, El Universo columnist Emilio Palacio was sentenced to three years
prison and fined $10,000 over a “criminal libel” charge by Camilo Semán, head of
the government National Finance Corporation. The World Press Freedom
Committee protested the long sentence. Semán dropped charges in June.
Diario La Hora correspondent Juan Alcívar hid for nearly a month after being
sued by officials in September. They accused him of “terrorist aggression” and
using media to “insult” and spread “hatred” of a mayor. Alcivar was jailed. City
officials alleged he threw a teargas bomb at the President in July. Other media said
he was just covering a Correa visit. Alcivar faced a $200,000 fine.
Journalist Freddy Aponte’s bank account was frozen for not paying $54,633 in
“moral damage” in a 2009 suit by Loja Mayor Bolívar Castillo. Aponte declared
bankruptcy. Of some $20,000 seized, more than $4,500 was his personal assets,
and $15,000 a bank loan. The mayor sued Aponte in 2007 for calling him a thief.
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