Herrera Ulloa v. Costa Rica
Criminal Defamation Chills Free Speech
The courts in Costa Rica convicted journalist Mauricio Herrera Ulloa and his newspaper La Nación of defamation after publishing allegations that a Costa Rican diplomat was involved in illegal activities. The Inter-American Court of Human Rights found that such a conviction chilled free speech, particularly as there was a public interest in exposing corruption, and public figures must tolerate more openness in such cases.
In 1993, a number of Belgian magazines and newspapers reported allegations that a Costa Rican diplomat, Felix Przedborski, was involved in a political corruption scandal in Belgium.
In May 1995, the Costa Rican daily newspaper La Nación published three articles about the controversy, which included the allegations together with information favorable to Przedborski. Following the publication of the articles, La Nación also published a reply by the diplomat.
Two months later, in July 1995, the Belgian press reported that Przedborski was involved in other criminal activities. In December La Nación published a fourth article that reported on these new allegations, and included the other side of the story.
In January 1996, Przedborski filed a complaint against the reporter who wrote the articles, Mauricio Herrera Ulloa, for criminal defamation. A San Jose penal court found for Herrera in May 1998, noting that he balanced accurate reports of the European allegations with statements and evidence favorable to Przedborski. The court found that Herrera was not acting out of a desire to offend or defame.
Przedborski appealed to the Supreme Court, which reinstated the criminal defamation charges and remanded the case for re-trial by the first instance tribunal. The Supreme Court noted that only a general intent to defame was necessary to convict, and held that the lower court erred in upholding a truth defense because the journalist had only proven the existence of the European press articles and not the truth of the allegations themselves.
In November 1999, the tribunal found Herrera guilty of four counts of criminal defamation as he failed to prove the truth of certain assertions contained in the European press reports. The Tribunal fined him 300,000 colones (around US $1,000) and ordered that his name be entered into the register of felons. The Tribunal also imposed penalties on La Nación and its publisher, Fernán Vargas Rohrmoser, including fines and other sanctions of over 63 million colones. On January 24, 2001, the Supreme Court rejected appeals by the applicants.
On March 1, 2001, Herrera and Vargas submitted a complaint to the Inter-American Commission on Human Rights. The commission found that Costa Rica had violated the right to freedom of expression protected by Article 13 of the American Convention, and held that Costa Rica should quash the convictions, pay compensation, and take the steps necessary to prevent further violations. When Costa Rica failed to comply with the ruling, the Commission referred the case to the Inter-American Court of Human Rights.
Open Society Justice Initiative Involvement
The Justice Initiative submitted an amicus curiae brief to the Inter-American Court explaining the relevant international standards that were applicable to consideration of the case.
Criminal defamation chills free speech. Criminal defamation laws are a disproportionate response to reputational harm because they have a severe chilling effect on the press generally, violating freedom of expression protected by Article 13 of the American Convention. Civil lawsuits are an adequate remedy that can guarantee reputational rights at a lesser cost to free expression. There is a growing trend around the world towards the elimination of criminal libel laws.
“Actual Malice” test. In defamation cases brought by public figures, there should be no strict liability for factual errors made in good faith. Freedom of expression and the protection of reputation should be balanced by applying the standard of “actual malice,” which requires proof that the defendant acted with reckless disregard for the truth or a similarly high burden to be met by the claimant or the prosecution.
In July 2004, the Inter-American Court of Human Rights found a violation of Article 13. The court stated that public officials and others who “enter the sphere of public discourse” must tolerate a greater “margin of openness to a broad debate on matters of public interest.” This was essential to the proper functioning of democracy. The court noted that the special protection enjoyed by political speech does not flow from the status of the individuals involved, but from the public interest in the discussion of their activities and performance. The court found that Herrera had largely reported on allegations published by the European media. Requiring him to prove those third-party allegations, in a case where there was a clear public interest in exposing corruption, had amounted to an impermissible restriction on his freedom of expression. The court did not adopt a specific standard of proof for criminal defamation cases. The court ordered Costa Rica to revoke Herrera’s conviction and all its effects, and to pay him moral damages as well as compensation for legal expenses.
Court finds violation of Article 13.
Written comments filed by the Justice Initiative.
Commission refers the case to the Inter-American Court.
Inter-American Commission finds violation of Article 13.
Herrera and Vargas bring case to the Inter-American Commission on Human Rights.
At a re-trial, Herrera and La Nación are found guilty of criminal defamation.
Supreme Court reinstates the criminal defamation charges.
A criminal tribunal acquits Herrera. Przedborski appeals to the Supreme Court.
Przedborski files criminal defamation charges.
La Nación publishes three articles. In December 1995, La Nación publishes a fourth article, based on fresh allegations.
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