H.E. Juan Fernando López Aguilar
Minister of Justice
Ministry of Justice
Madrid
Spain
Fax: +34-91-390 21 45
Vienna, 21 July 2004
Your Excellency,
The International Press Institute, the global organisation of editors, media executives and leading journalists in over 120 countries, is writing to you to criticise the Spanish Supreme Court’s decision of 18 June to dismiss the appeal of two journalists who formerly worked for the defunct Diario 16 newspaper.
According to IPI’s research, José Luis Gutiérrez and Rosa María López recently had their appeal refused by the Supreme Court after they had been found to have insulted the honour of the deceased Moroccan King Hassan II.
The case dates back to an article of 18 December 1995 by López that reported that a truck with five tons of hashish inside had been seized at the Spanish port of Algeciras. According to the article, which was subsequently confirmed to be truthful, the truck belonged to Dominios Reales, a company owned by the Moroccan Royal Crown. Diario 16 placed López’s article on the front page under the title, “Hassan II Family Enterprise Linked to Drug Trafficking.”
Responding to the article, the Moroccan Royal House filed an insult law suit against López, the then editor-in-chief Gutiérrez, and Diario 16’s publishing company, INPRESA. Two lower courts in the Spanish legal system found that Gutiérrez and López had disturbed Hassan’s right “to keep his honour” and made a financial award against them. The award of the court and payment of legal costs was deferred in order for the journalists to appeal the decision.
In deciding that Gutiérrez and López had insulted Hassan II, the Spanish courts applied the Protection of Honour, Privacy and Right to a Respectful Image law, and the award was administered under the 1982 Law of the State. In the present appeal, while the Judges accepted that the information contained in the article was correct they nevertheless chose to find the headline “insulting and untruthful.”
IPI understands that Gutiérrez has expressed his intention to take the case to Spain’s Constitutional Court and then to the European Court of Human Rights (ECtHR).
When examining the case of Gutiérrez and López, IPI is of the overriding belief that the case contravenes international law regarding freedom of expression. Significantly, IPI believes that the Spanish courts should have taken such case law into consideration when reaching its decision. Regarding the defence of justification (exceptio veritatis), the ECtHR has clearly stated that it must be available in insult and defamation cases and that any decision ignoring this principle is unacceptable.
The above view is supported in the case of Colombani and Others v. France where the French newspaper Le Monde relied on a report by the Geopolitical Drugs Observatory (OGD) on the drugs situation in Morocco. Based on similar facts to the present case, King Hassan II sued under a French insult law where there was no defence of exceptio veritatis.
On hearing the case, the ECtHR found on behalf of the defendants and made the following statement, “The inability to plead justification was a measure that went beyond what was required to protect a person’s reputation and rights, even where that person was a head of state of government.”
Moreover, in the case of Castells v. Spain, involving the author of a magazine article found guilty of insulting the Spanish government who was not given the opportunity to present a defence of truth, the ECtHR said, “The dominant position which the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available in replying to the unjustified attacks and criticisms of its adversaries in the media.”
IPI believes that the Spanish courts should have taken this principle and extended it to include heads of state. The fact that heads of state, like governments, have an array of different communication tools to combat media misperceptions means that they occupy a position very different to ordinary citizens.
Furthermore, it has long been a central tenet of ECtHR case law that governments must accept a greater degree of criticism than the average citizen. Once again, IPI believes that this principle should be extended to heads of state who must accept the legitimate right of the media to investigate and criticise their activities.
If the above principles were to be accepted by the Spanish courts then foreign heads of state would no longer be able to use the Spanish legal system as a means of exacting unfair and disproportionate revenge against journalists who write often embarrassing or uncomfortable articles.
On the question of heads of state suing in foreign jurisdictions, IPI believes that it is wrong both in practice and in fairness that an insult law in one country should offer succour and assistance to a head of state from another. Indeed, IPI finds it unseemly that heads of state from countries where they may have a greater control over the free flow of information should be allowed to “shop” for laws that effectively shape and control the flow of information in other countries
Although IPI does not intend to use this letter to provide a lengthy statement on the relationship between insult laws and Article 10 of the European Convention on Human Rights, it does believe that Gutiérrez and López will be vindicated before the ECtHR. For the Spanish insult law to be deemed acceptable it must be prescribed by law, have a legitimate aim and must be justified and necessary.
IPI does not believe the law can be seen as necessary for a democratic society because it confers on heads of state a special privilege that is afforded to no one else in society.
Therefore, IPI wishes to express its disagreement with the legal decision and add its hope that the ECtHR will swiftly overturn it.
We thank you for your attention.
Yours sincerely,
Johann P. Fritz
Director
