IPI Interview: FLIP on criminal defamation in Colombia
Organisation recently published manual for journalists facing libel and insult charges
By: Scott Griffen, Press Freedom Adviser for Latin America and the Caribbean
VIENNA, Feb 19, 2013 – Last year, Colombia’s Press Freedom Foundation (FLIP, according to its Spanish acronym) published a printed manual for journalists facing libel and insult* charges. This past month, the organisation released an online version of the manual, “so that any journalist could access it,” FLIP director Andrés Morales explained to the Knight Foundation.
The International Press Institute (IPI), which is currently leading a campaign to abolish criminal defamation in the Caribbean, spoke to Pedro Vaca, FLIP legal advisor, about the need for such a manual and a series of recent criminal defamation cases in Colombia.
IPI: Why did FLIP decide to publish a manual for journalists facing libel or insult charges?
FLIP: Basically for three reasons: [first] in Colombia the number of journalists killings has gone down, but other means of censorship, such as legal actions against the press, have increased; [second] since 2002 the Inter-American Court of Human Rights (IACHR) has produced a series of standards that protect freedom of expression when the latter is questioned by the courts; [third] journalists and judicial authorities in Colombia are not familiar enough with those standards.
FLIP saw the need to compile and present in an informative way the most controversial and recurrent aspects that we have seen in cases of libel and insult.
IPI: The manual states that the activities of public and elected officials should be more open to public scrutiny. Why is this the case and how can a journalist know if the information he or she possesses about an official is actually in the public interest?
FLIP: This is precisely one of the most controversial aspects [of libel cases], but if one looks more closely at the standards it is easy enough to sort out. The IACHR and the Colombian Constitutional Court have clearly indicated that when a person inserts him- or herself voluntarily into the public sphere two things happen: first, the official must be more tolerant of criticism; and second, his or her right to privacy becomes narrower in comparison to private citizens. The latter stipulation is based on the idea that society has a legitimate interest in knowing about the conduct of public officials.
Without a doubt, there are limits to this concept. The type of speech that is protected is that which relate directly to the exercise of public authority. As such, information related to the private life of an official, for example, is not in the public interest.
IPI: Are there cases in Colombia in which a reporter or media outlet has not published certain information in order to avoid legal action?
FLIP: We are contacted by journalists who wonder whether a certain article could give rise to possible legal action, but we are not aware of a case in which information has not been published out of fear of criminal [libel or insult] charges.
In Colombia, legal actions are not the main cause of self censorship. Other aspects, such as established fear in some regions, the presence of armed groups, and even the economic survival of the media are usually more decisive in the decision not to publish an article.
IPI: Is there a movement in Colombia to decriminalise defamation? What barriers would such a movement face and how could these be overcome?
FLIP: Such a movement does not exist. What we have seen are judicial debates [on defamation and libel] that have fallen to the Constitutional Court to resolve. In 2009, in a case supported by FLIP, it was declared that when a public official is absolved of an offence (for example, corruption), that decision entails no obligations on the part of the press. In other words, a journalist can publish information about the alleged corruption of a public official even if the latter has been legally acquitted of the alleged acts: judicial truth and journalistic truth are two different truths and neither takes precedence over the other.
Another debate considered a motion to decriminalise libel and insult. In this case the Court did not agree to abolish those laws, but did impose a system of strict checks to ensure that a libel or insult action would not infringe on freedom of expression. The challenge now is to ensure that these checks are carried out.
IPI: In 2012, journalists in Ecuador, the Dominican Republic, and Colombia were sentenced to prison for defamation. Do criminal defamation laws constitute a growing threat to freedom of expression in Latin America?
FLIP: The Rapporteur for Freedom of Expression [OAS Special Rapporteur for Freedom of Expression] has declared that the use of insult and slander charges to restrict freedom of expression is disproportionate. Without a doubt, there is a hemisphere-wide challenge not only with respect to the existence of these laws, but also in regards to other aspects such as [promoting] a democratic attitude on the part of the authorities—that is, understanding that criticism or reflection are not something negative. This is a cultural concept that is not being well incorporated into the region.
*Note on terms:
Insult (injuria) refers, in the Spanish-speaking world, to insults and expressions of scorn or invective when these are not accompanied by specific accusations.
Libel (calumnia) is the written form of defamation, which may be understood as a communication (usually an allegation or accusation), either written or spoken, containing a statement that harms the reputation or honour of the subject of the communication, generally by identifying a negative character trait or course of action that exposes the subject to hatred, contempt, or ridicule.