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SAN JOSÉ, Sep 18 2009 (IPS) - A bill on the press and freedom of expression that has been kicking around in the Costa Rican Congress for the past eight years, which deals with questions like source confidentiality, access to public information, and libel and slander laws, was saved in late August from being permanently shelved by the legislature.
On Sept. 1, Freedom of Expression Day in Costa Rica, eight former heads of the Journalists Association sent a letter to lawmakers criticising the draft law. However, the present leadership of the Journalists Association openly supports it.
Two key aspects of the draft law are the right of journalists to keep their sources confidential, and citizens’ right of access to public information.
The text contains reforms and partial repeals of articles or items of the criminal code and criminal prosecution code, and an addition to the law on radio and television.
Under its “conscience clause,” the bill stipulates that a journalist cannot “be obliged to do work against his or her conscience or against generally accepted professional ethics,” nor can they be disciplined by their superiors “for their opinions or what they report.”
The main change proposed in the draft law is an addition to articles in the criminal code establishing fines for slander, defamation and libel. The bill says the plaintiff must prove “malice” on the part of the journalist, or show that he or she published statements with “reckless disregard for truth or in the knowledge that they were false.”
These changes would restore the presumption that a reporter is innocent until proven guilty. But according to the bill’s critics, they would leave citizens unprotected against the power of the press to defame or publish false information.
The letter from the former heads of the Journalists Association argues that “there is rampant commercialisation of a certain kind of press that might lend itself to publishing material that destroys the good name of a person, without incurring any risk whatsoever of criminal prosecution.”
Eduardo Ulibarri, head of the Institute of Press and Freedom of Expression, complained that Article 149 as it stands “is not concerned with the substance of the truth, but with details” and obliges the accused to prove their innocence.
But the letter sent to parliament by the former heads of the Journalists Association brands some of the items in the draft law as “liberticide,” that is, destructive of civil liberties.
“If the draft law has been before parliament for eight years and has not been approved, it is clearly not viable,” Armando Vargas, one of the signatories of the letter, told IPS.
In Vargas’ view, the bill is “counterproductive,” although he acknowledged that Costa Rica does need laws “to deal with these issues that have already been legislated on by other countries.” These laws should adopt principles enshrined in international conventions or the country’s constitution, and spell them out fully, he said.
The draft law would also reform Article 151 of the criminal code, on reporting offensive statements made by a source, with the introduction of the principle of faithful reproduction. “If I quote a source faithfully, the responsibility for what is said rests with the source,” as Ulibarri put it.
In 1999, journalist Mauricio Herrera was convicted for defamation for reproducing information published in Belgian newspapers alleging acts of corruption by a Costa Rican diplomat.
Herrera took his case to international courts, and in 2004 the Inter-American Court of Human Rights overturned the verdict against him, condemned the Costa Rican state for violating Article 13 of the American Convention on Human Rights, and ordered it to indemnify the journalist.
The Court also ordered the country to amend its laws to guarantee the right to appeal, which it has not yet done.
The representative in Costa Rica of the Centre for Justice and International Law (CEJIL), Gisela de León, told IPS that the bill “incorporates international standards on freedom of expression,” and pointed out that Costa Rican statutes still provide for prison sentences for crimes against honour, in Article 7 of the law governing the press.
In CEJIL’s view, it is essential to remove matters concerning freedom of expression from the criminal code, so that they are governed instead by the civil code or simply by the right of correction and right of reply.
Journalist Miguel Agüero of the La República newspaper said the draft law is “positive” but doubts the political will exists to approve it.
At any rate, in Costa Rica “we can criticise politicians, the government and companies,” although one of the worst problems is the lack of freedom within newspaper companies to criticise industries connected with the paper itself, or with its advertisers, he said.
The press is one of the institutions held in the highest esteem by the public, according to a 2008 survey titled “Población Costarricense, Libertad de Expresión y Acceso a la Información” (Costa Rican Population, Freedom of Expression and Access to Information), carried out by the National University.
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