Essay: Libel

This work is engaged in a brief analysis of libel, taking into account the descriminalizadoras trends that are announced in Europe. These trends underpin this claim on the lookout for “social responsibility” of the media and the importance it has for the very survival of democratic and plural societies, the existence of a public’s right to a free, transparent and independent. For these reasons, this work is based on the existing constant dialectic between the personal rights protected by the criminal defamation and the right / duty to information by the mass media ([1]). Is excluded, so this analysis, defamation committed outside the scope of the press.
2. The Crime Defamation Defamation is a criminal conduct punishable with long historical tradition in Portugal, given the legal right that traditionally goes with it: the honor. It is true that long are the years in which the honor was “washed” in duels, also is nonetheless true that this value is deeply rooted in Portuguese culture and is not therefore surprising to note that the ordinary legislator gave him .
2.1. Honor How Value Legally Subordinate Before defamation crime analysis, should be given attention in the legal interests protected by the incriminating standard of this crime, ie the honor and consideration ([2]). The honor, as a legal right, can be defined in many ways, given the different views and analysis approaches that this law may well have. However, without going into this question ([3]) understand that honor is a “good personality and immaterial, which translates into a claim or right of the individual not to be vilified in its value in the eyes of society” ([4]) and are, therefore, a form of the free development of human dignity, constitutionally safeguarded value and foundation of the Portuguese State ([5]). As for the consideration, we follow closely the beauty of words dos Santos to say that this is “one set of requirements that reasonably should be deemed necessary to anyone, so that the lack of any of these requirements may expose that person to lack consideration or to public contempt; refers to the judgment that form or can form the public to consider someone a good social element, or at least not judge a negative value. “([6]).
2.2. The Defined Defamation Crime legal property protected by defamation, it is time to begin the analysis of this crime, beginning with a brief historical sketch of the crime and ending a brief description of the current legal regime.
2.2.1. Brief Historical Analysis In 1852 came into force the first Portuguese Penal Code, which revoked the Philippine Ordinances in force until then ([7]). In this code, crimes against honor were set out in Chapter V of Title IV of Book II, Article 407 et seq. The Penal Code of 1852 was devoted both libel (art. 407) as the injury of crime (art. 410). However, the legislative technique to distinguish between these crimes became then in actuality or absence of the defamatory act. Thus, it was-before a smear situation where the victim was attributed, directly or to third parties, practice an offensive fact that his honor and esteem; in turn, was up before an injury of crime where the victim via your honor or injured consideration, directly or to third parties, but without, but without attribution of a fact ([8]). In turn, the Criminal Code of 1852 admitted the exceptio veritatis but under very strict conditions ([9]) and for the fulfillment of typical subjective elements of this crime, understood to be required proof of animus injuriandi level difamandi, ie the intention of the agent in defame or insult. Between 1852 and 1884 this law was revised, giving rise to the so-called “de1886 Code”, which was repealed by Decree-Law No. 400/82 of 23 September, which approved the Criminal Code currently in force.
2.2.2. Defamation Crime Legal Regime Pursuant to art. 180 of the current Penal Code, defamation consists in attributing to another, even in the form of suspicion, or to formulate a value judgment, directed the third offensive honor or consideration of others. Distinguished, so the crime of libel for what Faria Costa defined as a “legislative technique based on direct or indirect imputation of dishonorable facts or judgments.” ([10]). In fact, while in defamation the damaging action of the honor or consideration is made toward third, there is therefore an indirect imputation of facts or dishonorable judgments in the case of injury this allocation is directly and immediately made towards the victim himself. The libel is a felony and its objective element “has to result in free will to practice the act with the awareness that the expressions used offend the honor and others consideration, or at least are able to cause that offense and that such an act is prohibited by law. “([11]) ([12]). It is therefore the possibility of practicing this crime by negligence. It is the understanding of the doctrine and jurisprudence that this is an abstract-concrete danger crime, that is, simply, to check them “the possibility of damage to his reputation and consideration, without the need for implementation of the danger, but that this danger will to be precisely as possible. “([13]) ([14]). Despite the offensive nature of certain words is inherent to them, their meaning and offensive load must be contextualized social media attentive, professional and space-time in which they are uttered. Moreover, “it is not necessary that such expressions actually reach the honor and esteem of the person concerned, producing a result of damage, simply the susceptibility of these expressions to offend. It is that the crime in question is a danger of crime, simply the suitability of the offense to produce the damage. “([15]). Finally, “the entry into force of the CP 1982, the crime of defamation no longer required specific intent to fill, say, specific, the” animus difamandi “by simply typing your subjective element generic fraud in any of its forms. “([16]).
2.3. The Freedom of Expression and Honor at the International Planning Freedom of expression and freedom of the press are welcome in most of the major instruments of international law which concern human rights, they are enshrined at the outset of art. 19 of the UDHR ([17]) and in art. 10 of the ECHR ([18]). However, the honor and reputation of each individual are also values ​​that have protection in international law, are protected in constituto iure, in art. 12 of the UDHR and art. 10/2 of the ECHR.
2.4. The Freedom of Expression and Honor In the Constitutional Planning Portuguese arrived here, we should quickly examine the constitutional protection of both the freedom of the press or of honor and individual consideration.
2.4.1. Freedom of Information and Press The Basic Law enshrines broadly, freedom of expression and information in their art. 37, which in the scholarly words of Ricardo Leite Pinto, “takes on a matrix role in relation to other rights, freedoms and guarantees of information, and immediately constitute a precondition for freedom of the press and the right to information.” ([19]). In turn, freedom of the press ([20]) is enshrined in art. 38 of the CRP. As highlighted Gomes Canotilho and Vital Moreira, this freedom, rather than a right, it is a complex or constellations of rights and freedoms and being just “a qualification of freedom of expression and information ([21]) for the public (…) she shares the entire constitutional system of this, including the prohibition of censorship, the submission of any infringements of general principles of criminal law, the right of reply and rectification. “([22]). Also these constitutional scholars stress the importance of press freedom as a fundamental requirement for the survival of a democratic state stating that “today the freedom of the press, without ceasing to be a right of defense before the authorities also became the constitutional guarantee of free formation of public opinion in a democratic constitutional state. “([23]) ([24]). It follows that the freedom of expression as enshrined in art. 38 of the CRP, the scholarly words of Ricardo Leite Pinto, “takes on a matrix role in relation to other rights, freedoms and guarantees of information, and immediately constitute a precondition for freedom of the press and the right to information.” ( [25]).
2.4.2. Right to Honor The Basic Law does not use the term honor, as does the international law but no one can say that it does not have constitutional protection. And so is because, firstly, the constitutionally enshrined fundamental rights do not exclude other existing in international law (Art. 16/1 CRP) and they must be construed in accordance with the provisions of the UDHR (art. 16. º / 2 CPR), which, as we have seen, expressly provides for the honor and reputation as human rights. On the other hand, with the honor and corollaries consideration of the dignity of the human person, which is a founding element of the state itself (art. 1 of the CRP), can only be constitutionally enshrined rights. Finally, the Basic Law protects the right to good name and reputation (Art. 26/1 CRP), rising to the rank of fundamental right the right to, in the words of scholarly Canotilho Gomes and Vital Moreira, “(… ) not to be offended or injured in his honor, dignity or social consideration by imputation made by others, as well as the right to defend this offense and to obtain the appropriate repair. Therefore, this law is a limit to other rights (eg, freedom of information and the press). “([26]) is thus undisputed that the honor and consideration not only have constitutional protection, as they have, in the wise words Jorge Miranda and Rui Medeiros, “a very broad legal scope, standing at the heart of human dignity idea. The constitutional significance of safeguarding the good name and reputation, legitimize the criminalization of behaviors such as libel, defamation, slander and abuse of freedom of the press or the admissibility under the liability, compensation for non-material damage advenientes of unlawful conduct by offending the good name and reputation of the people. “([27]).
2.5. Protection of Honor in Infrastructure Planning Constitutional Verified constitutional protection constitutional and above the right to honor, we must analyze the effective protection that this legal right has the infra-constitutional law.
2.5.1. The Defamation As Civil Illicit The ordinary legislator, instead of performing a breakdown of the different rights of personality, such as life, physical integrity, honor, good name and reputation, credit, etc., chose to enshrine iuris constituto a general right of personality or rights of personality, which, in scholarly words of Orlando de Carvalho “(…) covers all the predictable and unpredictable manifestations of human personality as it is at a time, right to human-being and person-becoming, or rather the person-being and becoming, not a static entity but a dynamic and live up to their “freedom to flourish” (…). It is a jus in se ipsum radical, in which the person is well protected, corresponding to its intrinsic need for self-determination (…). Only such an unlimited and illimitable right to provide sufficient protection of man against the risks of violation that offers the contemporary society. “([28]) ([29]). This general right of personality, inherent to the human person as a whole, despite the many criticisms which has been over time ([30]) ([31]), is a general clause ([32]) and is now accepted by doctrine and case law protecting individuals against any violation of their physical or moral character, having legal recognition, at least since the entry into force of the Civil Code of 1966, Article 70/1 of the Portuguese Civil Code. This right is acquired with the acquisition of legal personality ([33]), ie, the full birth and life ([34]) and enjoys protection even after the death of its holder ([35]). It is therefore undeniable that the violation of the right to honor through defamatory acts is an unlawful act and, as such, generates liability of those who practice ([36]), and compensated not only damage to property directly caused by defamation ( if any), as well as personal injuries ([37]) resulting from the same ([38]). But even if it is not understood, the truth is that the honor and consideration are legal interests expressly protected by the criminal law, which is why the violation is unlawful. Now, the resulting criminal responsibility for violation of criminal legal goods generally ([39]) creates an obligation to pay compensation under the liability regime for unlawful acts provided for in art. 483 of the Civil Code.
2.5.2. The Defamation As Criminal Illicit: Brief Analysis of the Legal Framework Governing the libel is currently provided for in art. 180 of the Criminal Code ([40]) and is punished with imprisonment up to six months or fine up to 240 days ([41]). Practicing this crime who to turn to a third party, imputing to others, even in the form of suspicion, an offensive that the honor or consideration of, or reproduce such imputation or judgment. Portuguese law allows the existence of exceptio veritatis, ie the possibility of exemption from criminal liability when the agent demonstrating the veracity of the allegations made against the victim and there is a public interest in disclosure. Under the combined provisions of paragraph 2 of Article 180 of the Criminal Code, the exceptio veritatis is a cause of unlawful exclusion if, cumulatively, (i) the facts are true or, at least, the agent demonstrate that he had serious grounds for, in good faith, be convinced of its truth, (ii) the defamatory imputation is necessary for achieving the legitimate interests and (iii) this does not concern facts relating to the intimacy of private and family life of the injured ([42] ). In order to demonstrate good faith referred to above is required to prove, by the agent, who was diligent in getting the information and, therefore, was convinced of the veracity of the information.
3. ALiberdade of Speech and Thought Versus the Right to Honor Derived from the fact that today freedom of expression and information (sensu lacto) overstepping the scope of purely personal and individual freedoms, also constituting freedoms pursuing corporate interests, is the natural conflict between them and other personal values ​​like honor and consideration. In this conflict, there are two main streams: one defends the right to privacy, honor and good name, suggesting that these only in exceptional cases may be harmed by the right of expression; another, with origin in the case Profumo ([43]) argues that, in the words of Manuel Lopes Maia Gonçalves, “everything copes with community life ceases to be valid as a case of privacy, which must give in the interest of information the community, when the veil of secrecy and booking is harmful for the purification of public life. “([44]).
3.1. Court reports Predominant: The Primacy of Personal Rights on Freedom of Expression and Thought analyzing the jurisprudence of higher courts on criminal defamation, it turns out that they tend to follow an orientation that gives predominance to personal rights, in particular the honor and the good name of individuals, to the detriment of the right to freedom of thought, expression and information ([45]) ([46]). In a way, it can be said that, in some ways, our society is still in the “country of respeitinho” ([47]), where “respeitinho is very beautiful and we like” and that is what the law the courts ruling has swung in the clash between freedom of expression and the right to honor. The defended idea is simple: the honor and good name are personal and fundamental constitutional rights, so any act that offends these values ​​is in unlawful principle, except in cases where it is possible ([48]) and it is proved the “exceptio veritatis”, ie proof of the veracity of the claims, which exonerate the criminal liability of agent ([49]) if there is public interest (not the public) the disclosure of such facts ([50]). This trend, undeniable in our jurisprudence, the prevalence of individual personal rights as the honor and good name on the rights of expression and information is particularly relevant in decisions recognize that, in constitutional terms, these rights occupy the same hierarchical level , can not be said that one prevails over the other, and then end up arguing that, in practice, the right to good name and honor prevail over freedom of expression and information, in so far as this, to be exercised, must to do conditional manner so as not to cause (or to cause the minimum possible damage) honor and good name of the target. Assuming that we are dealing with rights that, constitutionally, occupy the same hierarchical level, we think that only a sample and reasoned analysis is that you can decide which right should prevail over another. These are fundamental rights of collisions, which should be resolved case by case basis and by applying the principle of proportionality, pursuant to art. 18/2 of the Basic Law. It is therefore exaggeration to say that the honor prevails, ab initio, on the right to freedom of information ([51]). On the other hand, if this jurisprudential trend is dominant, the same applies to the existing doctrine in Portugal, which generally support the primacy of individual personality rights on freedom of expression and information.
3.2. The predominant Doctrine: The Primacy of Personal Rights on Freedom of Expression and Thought Doctrinally, the positions held by Prof. Dr. Faria Costa constitute an insurmountable milestone for those dedicated to the study of criminal law of communication ([52]). Within these positions we emphasize the fact that, for this great teacher, assessment of the social function of the press “(…) should be filtered by a rigid and inflexible criteria. That is, if there is the slightest doubt – and we talk about the slightest doubt, not rhetorical sense – as the public and social character of the shameful tidings duty shall be, without exception, be considered that the allocation of such a fact does not pursue the conducting legitimate interests. “([53]). For these reasons, the doubt as to the public interest nature of the news does not favor the accused but the victim ([54]).
3.3. Winds of Change: The Dominant Thought In the European institutions Developed an analysis of the doctrine and jurisprudence dominant in domestic law, must now carry out similar analysis to the existing reality at European level, to assess whether there is identity or different positions. We begin with a brief review of European Court Jurisprudence of Human Rights (ECHR), and subsequently analyze the positions advocated by the Assembly of the Council of Europe (CoE).
3.3.1. The case law of the ECHR As regards the matter of defamation perpetrated by the press, highlight, of course, the judgment of this court of 28 September 2000, known as “Lopes Gomes da Silva vs. Portugal” ([55]) ([56]). In this, the ECtHR held that “freedom of expression is one of the essential foundations of a democratic society and one of the main conditions for its progress and for the development of each individual. Without prejudice to paragraph 2, it applies not only to ‘information’ or ‘ideas’ welcomed or regarded as inoffensive or indifferent, but also to those that hurt, shock or cause trouble. Thus the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. (…). He also argued that “These principles are of particular importance for the press. If this should not exceed the limits (…), it must, however, impart information and ideas on political issues and on other topics of general interest. About the limits of acceptable criticism, they are wider with regard to a politician, acting in his capacity as a public personality, a simple citizen. (…) “. This Judgment is not isolated in the jurisprudence of the ECtHR, with many others who maintain that the punishment of conduct is legitimate only if the interference with the right of expression and information is justified in the context of a democratic society. It is therefore this limitation that makes much of what the courts consider how to meet the typical elements of libel are then legitimized by the ECHR ([57]) ([58]). Do not think, however, that the ECHR argues for the supremacy of the right to information and expression on other rights. On the contrary, it is clear that “the ECHR does not organize any hierarchy between the proclaimed rights and operates a” neutralization “reciprocal of the right to freedom of expression and the right to respect for private life, and the authorities should endeavor to ensure both rights. Art. 10, paragraph 2, provides the State the means to achieve this reconciliation, authorizing him under European control, to limit by law, freedom of information to “protect the rights of others.” (…) The ECHR has stated the principle of strict interpretation of limitations to this right, indoctrinating a restriction on its exercise may never reach it “in his own substance.” ([59]). However, we think, given the jurisprudence briefly analyzed be difficult to defend the position that there is the slightest doubt about the nature of public news interest, then it should will, without exception, consider that there was a wrongful imputation, according to rule advocated by Prof. Faria Costa. Thus, given the interest to the livelihoods of a democratic and pluralistic society, recognized by the ECHR, it seems that such a rule, having a rigid and inflexible nature, constitute an obstacle to freedom of expression, not sufragada by this court.
3.3.2. Recommendations of the Council of Europe Parliamentary Assembly recently, the Assembly of the Council of Europe ([60]) explicitly recognized the importance of freedom of expression in the context of a democratic society. Even in 2007, this European institution presented Resolution No. 1577 (2007) ([61]), called “For a defamation of Decriminalization,” in which he argues, among other things, that “freedom of expression is stone touch of democracy. Where there is no real freedom of expression, there can be no true democracy. (…). Article 10 of the European Convention on Human Rights guarantees freedom of expression not only in relation to information or ideas that are favorably received or regarded as inoffensive or indifferent but also in relation to those that offend, shock or disturb. (…) Every case of imprisonment of a media professional is an obstacle unacceptable to freedom of expression and means that, although their work is done in the public interest, journalists to have a sword of Damocles over him. The whole society as a whole suffers the consequences when journalists are gagged by pressure of this kind. The Assembly therefore considers that the sentence in prison for defamation should be abolished immediately. Specifically encourages states whose legislation still provides for imprisonment – though it does not apply to abolish it immediately, so as not to give excuses, but unjustified, those who continue to apply it, causing a corrosion of fundamental freedoms. (…). “This resolution gave rise to Recommendation 1814 (2007) ([62]), in which it invited the Committee of Ministers to encourage all member states to review their legislation in order to adopt the guidelines for the crime of defamation, provided that. The Committee of Ministers prepared a response in 1029.ª Meeting of the Ministers, which took place on 11 June 2008. In reply, the Committee came to support the adoption of measures with the aim of removing any risk of abuse or unwarranted charges , which is clearly not the same as advocating the decriminalization of libel. The Committee of Ministers also considered it inappropriate to develop rules on defamation for specific member states.
3.3.3. Some Jurisprudence and Doctrine Minority in Portugal
I. The Court Of course, the doctrine and the case law have not been sealed to these new ways of seeing the conflict between the right to honor and consideration and the right to freedom of expression and information. There has been, therefore, a new current case law, parallel to the dominant but, gradually, will making its way ([63]), who admits that “the conflict between the right to honor and freedom of expression, has been occur a turning point, on the basis and foundation of relief, dignity and dimension of freedom of expression considered a dual dimension, namely as a fundamental right individually and as a shaping principle and essential to maintaining and deepening of the democratic rule of law , recognizing that the right of expression, such as the right to inform, opinion and criticism, is the very foundation of the democratic system, which justifies the assumption of a new perspective on conflict resolution. In this context, we have been advocating, in the wake of the stance taken by Costa Andrade, are to be considered atypical judgments of appreciation and valuation of criticism poured on scientific achievements, academic, artistic, professional, etc., or on performance achieved in the fields sports and entertainment, when it is not beyond the scope of objective criticism, that is, while the valuation and censorship criticism cling exclusively to the works, the achievements or services itself, not addressing directly to the person of their authors or creators, since it does not reach the personal honor of the scientist, the artist, sportsman, professional groups, nor do they achieve the honor with a criminal offense and the lack of criminal protection that define and delimit the relevant typical area of ​​responsibility. Most understand that Master notable that atypical lens criticism can and should be extended to other areas, here including public bodies, especially the acts of public administration, judgments and orders of the judges, promotions MP, the decisions and political performance of sovereign bodies as the Government and Parliament. On the other hand, he said, the atypical lens criticism does not depend on accuracy, material adequacy or the “truth” of the subscribed assessments, which will persist as atypical acts whatever their well founded or correctness material, in addition to that the corresponding right of criticism, with this meaning and scope, no limits on the content, the derogatory load and even violence of the expressions used, ie, does not require critical to make clear its point of view, means less burdensome, nor compliance with the requirements of proportionality and objective necessity. Costa Andrade defends even to be considered atypical judgments which, as necessary reflection of objective criticism, eventually achieving the honor of the target, since the critical evaluation is appropriate to the relevant factual information, clarifying, however, that should be excluded the atypical regarding slanderous criticism, as well as other judgments solely motivated by the intention to demean and humiliate and, also, in all situations where negative judgments on the target have no connection with the subject under discussion, consigning expressly that one thing to criticize the work, quite another is personally attack the author, give expression to a slight directed at his person. Part of the jurisprudence of our superior courts comes sufragando such guidance, and, according to the same, we believe that the right of expression in its aspects of right of opinion and criticism when they exercise and falls in the specific areas mentioned above and with the content and scope mentioned, should redound in damage to his reputation, can and should have the atypical, since the agent does not incur the slanderous criticism or judgments formulation which underlies the sole purpose to demean and humiliate. In a situation where the defendant, district judge, there are formulated in judgment, negative value judgments about the defense lodged an ordinary procedure, developed by now an assistant at his stern advocate of quality, and has tissue harsh criticism to that pleading