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Freedom of expression vs. the right to honor and privacy

This paper will discuss the balance between the right to freedom of expression of journalists and the media in relation to the publication of articles, reports, or news and the right to honor and the right to privacy of a public figure. This topic will be mainly addressed based on the pronouncements made by the Supreme Court of Justice of the Nation in resolving controversies related to the subject.

The central question is whether a person of public interest has the right to sue for compensation for having suffered an affectation of his rights to honor and self-image, derived from the dissemination of a newsworthy fact about him.

The SCJN has established that it is not possible to sue, arguing the following: (i) if journalists were to be held liable for publishing newsworthy facts of third parties, it would hinder freedom of expression, which is a “pillar of a constitutional and democratic state”, i.e., if public figures could hold journalists liable for neutrally circulating statements, it would generate a deterrent effect that would hinder the press from contributing to discussions of public importance; and (ii) public persons have a higher threshold of resistance to the opinion and criticism of third parties, which means that the limits of criticism are wider because they are exposed to public scrutiny.

At the beginning of 2019, the SCJN resolved two cases about the topic set forth in this note, the first one in the month of February, when resolving the direct amparo in review 6175/2018, in which the First Chamber held that a resolution of a Collegiate Court that required a journalist to prove statements regarding “owners of a radio and television concessionaire and their relationship with political power in Mexico”, does not harmonize with the right to freedom of expression, and established that in the case of opinions about characters of public interest, freedom of expression prevails over personality rights of public characters, going so far as to hold that these expressions may include attacks and criticisms with “a certain dose of exaggeration, even provocation.” The second case, amparo directo en revisión 172/2019, resolved in April, which was a lawsuit filed by a public person alleging that a newspaper article affected his rights to honor and self-image; again, the First Chamber of the SCJN resolved that while the rights of third parties to honor and privacy must be respected, the limits to freedom of expression are broader when they refer to persons who, because they are public, are exposed to a rigorous review of their activities.

Acedo Santamarina

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