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Constitutional Court finds Criminal Code article affecting slander and libel cases to be unconstitutional

(FLIP/IFEX) - 3 July 2009 - Journalists and media outlets will no longer be subjected to criminal charges for libel and slander when they publicise truthful information about individuals who have been absolved of wrongdoing by the judicial system. A Constitutional Court ruling to this effect was made public on 2 July. In making the decision, the Constitutional Court declared Article 224 of the Criminal Code to be contrary to the Constitution.

The ruling came about as the result of a request submitted by the Los Andes University Law Department's Public Interest Group (Grupo de Interés Público de la Facultad de Derecho de la Universidad de Los Andes), with support from FLIP. In the request, the Constitutional Court was asked to review the constitutionality of the Criminal Code article in question. The request for review was supported by citizens and both national and international universities and organisations.

The Criminal Code article covers situations where an individual is absolved of wrongdoing or where a court case against an individual is dropped. In these cases, the Criminal Code states that if a media outlet or media practitioner is sued for publicising information about that individual or event, they cannot not exempt themselves of responsibility for the information even if they prove it to be true. The Constitutional Court ruled that, contrary to the Criminal Code article, the proof of the truthfulness of the information in question is admissible and can be used a defence against the slander or libel charge.

The Constitutional Court described Article 224 of the Criminal Code as stating the following: when a sentence has already been issued in a case (. . .) no further information can be publicised about the case that was the subject of the criminal proceedings, even if it relates to issues such as risks to international humanitarian law or human rights, or the functioning of democracy and its institutions, such as takes place with accusations against public figures and in criminal investigations that are highly relevant to the public.

The Constitutional Court considered the Criminal Code article to give disproportionate consideration to the right to honour of individuals relative to the right to freedom of expression and information rights. The court stated that the appropriate use of freedom of expression cannot be criminally punished when the information distributed is truthful - or at least is based on real events and the required sources have been consulted - since this constitutes a risk to the right to information.

With its decision, the Constitutional Court did not decriminalise slander and libel, but it has made a ruling with respect to the proportionality of a criminal law sentencing relative to the right to freedom of expression. The right to freedom of expression has been deemed to prevail over the right to honour of individuals. In addition, the decision highlights the importance of the journalistic investigation - its truthfulness and impartiality - with respect to issues of public interest, independent of whether an issue has been resolved at the judicial level.

Press release by FLIP and the Los Andes University Law Department's Public Interest Group.

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