On February 16th, the National Court of Justice, Equador’s supreme court, upheld a prison sentence in connection with a libel claim brought by President Rafael Correa. In March of 2011 President Correa filed suit against César Pérez, Nicolas Pérez, Carlos Pérez, and Emilio Palacio for printing a story about him. The story described how President Correa ordered troops to fire on a hospital filled with innocent civilians in response to a police protest seeking higher wages.
Emilio Palacio wrote the article, while César Pérez, Nicolas Pérez, and Carlos Pérez are owners and executives of the paper that published the article. The newspaper is called El Universo and is a ninety-year-old publication that has extreme influence on the people of Ecuador. The 40 million dollar fine upheld in this case could put the publication out of business. In addition to the 40 million dollar fine, the sentence included a three-year prison term.
Currently, César Pérez, Nicolas Pérez, and Emilio Palacio are in Miami and will seek asylum in the United State. Carlos Pérez sought asylum in the Panamania embassy in Quito, and was granted asylum by the Panamanian President Ricardo Martinelli. Nicolas Pérez was quoted stating that, “[he and his brothers] will continue to fight for the freedom of expression and equal access to justice in Ecuador by appealing to the Inter-American Commission on Human Rights.”
President Correa felt that the suit was necessary to expose how corrupt the press is. He also wanted to make it known that just because someone can afford to own a paper does not mean that they are afforded the right to print whatever they want. Mr. Correa said he would consider a pardon for the four men because the case has already demonstrated the point he was trying to make.
Do you think that a three-year prison sentence and 40 million dollar fine that could put a 90-year-old publication out of business is a little harsh? Should there be special considerations when it comes to freedom of the press when it relates to the President of a country?
SOURCES: The New York Times and The Wall Street Journal
With the president pointing his finger at the newspaper and the publicists pointing their fingers back, one might forget that there are three players in this story. The fact that the court affirmed the convictions is damning here. The president, as any other individual, has a right to defend himself against libel, while newspapers have a right to publish the news, if true and however unpleasant. But the court adjudicates the rights between the two. The Inter-American Court of Human Rights has held that public officials “who have voluntarily exposed themselves to greater public scrutiny are subject to greater risks of being criticized, since their activities are … part of the public debate.” The honor of public officials or public people must be legally protected, the court says, but that must be accomplished “in accordance with principles of democratic pluralism.” The use of criminal proceedings for defamation must therefore be limited to cases of “extreme gravity” as a “truly exceptional measure” where its “absolute necessity” has been demonstrated, and that in any such case the burden of proof must rest with the accuser. That these courts appear to have fully accepted the president’s case points to a clear lack of judicial independence, one that seriously chills freedom of speech in Ecuador.
Libel is a written communication of an untruth which injures a person’s reputation. The statement must be conveyed as fact and not as opinion.
The statement was conveyed as fact because it was published by a reputable newspaper which intended for the statement to be a factual assertion.
I don’t know the details of the incident involving President Correa. However, if the president did not in fact order the troops to fire on the hospital, Correa would have a legitimate claim against El Universo. If on the other hand, the untruth pertained to a mundane detail, President Correa would not have a cause-of-action in libel.
Additionally, Correa must demonstrate injury to his reputation. If Correa as a reputation for being a tyrannical rule or is known to make rash decisions that have tragic consequences, Correa would not have a lawsuit for libel even if El Universo’s assertion that Correa ordered troops to fire on the hospital was in fact false.
Before any outrageous fine or jail time is imposed, Correa should ask El Universo to retract the statement and issue an apology. If El Universo refuses to do so, penalties should be imposed on El Universo and Correa should receive compensatory damages commensurate with the level of harm done to Correa’s reputation (and punitive damages if El Universo acted maliciously in publishing the information).
Whether El Universo should face the harsh penalties it is facing for its actions is debatable. Freedom of the press and honest reporting is a delicate balance. El Universo may have made an honest mistake but, even so, the newspaper should take care not to act negligently in its fact-gathering.