El Salvador

A serious setback to press freedom occurred during this period. The Supreme Court’s Constitutional Division declared unconstitutional Article 191 of El Salvador’s Penal Code which made libel and defamation offenses not punishable by imprisonment, thus doing away with a safeguard for news media and the press at large. On September 24 the Division, made up of five justices, declared unconstitutional some of the three paragraphs of Article 191. One of the justices, Néstor Castaneda, dissented from the others – Sidney Blanco, Rodolfo González, Florentín Meléndez and Belarmino Jaime, the current chief justice. Article 191 on exclusion of offenses establishes: “There shall not be punishable unfavorable judgments of political, literary, artistic, historic, scientific, religious or professional criticism, nor unfavorable opinions expressed through any medium by individual persons in the exercise of the right to Freedom of Expression, so long as in the means of proceeding they do not demonstrate libelous intent or an attack upon the privacy or the personal image of a person. “Similarly, there shall not be punishable unfavorable judgments of political, literary, artistic, historic, scientific, religious or professional criticism, nor unfavorable opinions expressed or disseminated by those who practice journalism through news items, reports, journalistic investigations, articles, opinions, editorials, cartoons and journalistic items in general published in print, radio, television or online news media in compliance with the duty to inform by virtue of the right to information or in the exercise of his or her job or function. “In any of the situations regulated in the two previous paragraphs the print, radio, television and online news media which publish the aforementioned judgments or opinions shall not incur any kind of criminal responsibility, nor the owners, editors, publishers, managers of the news media outlet, or those in charge of the program, as the case may be.” The Supreme Court action was in response to a complaint lodged by a citizen who was having difficulties with a news media outlet, giving rise to criminal charges against its owner and editor in chief, while there continues to date to be civil action under way against the defendants. The 43-page-long Court decision has given rise to uncertainty among the press. In several forums some judges have felt it means a return to making libel a criminal offense. The Inter-American Commission on Human Rights’ Special Committee for Freedom of Expression called this decision a setback for press freedom. The Salvadoran Congress is studying a series of possible amendments to Article 191 in order to be able to exonerate from prison not only journalists but also citizens in general. Also under review are changes to other, complementary articles to adjust the legislation and that there be certain flexibility for the press. In addition, it has been raised that there should be limits to civil lawsuits, as media defendants also face the risk of being sued for millions of dollars, which could bring about their financial strangulation. The newspaper La Prensa Gráfica has been convicted on two occasions for having published photos of a minor delinquent at the moment he was stabbing another youth to death on a public street. A juvenile court judge brought a case against the newspaper alleging violation of that youth’s right to privacy, but failing to consider the right to information, and she handed down a conviction. The case went on to a higher court. Judges, who went so far as to express their opinion ahead of time, convicted the newspaper, applying the Juvenile Criminal Law in an extreme and literal manner, without giving leave for other arguments. They issued their sentence against the defendant despite wrongdoing committed by a lower court judge, which they acknowledged but did not regard as serious. The newspaper’s president, José Roberto Dutriz, has decided to appeal the conviction to a higher court and plans to file a lawsuit against the Minors Chamber of the Supreme Court’s Administrative Disputes Division. In March, following the publication of the photos, Congress looked into reforms to strengthen the Juvenile Criminal Law. It increased prison terms for minors under age 15 and made the ability to publish photos in the case of serious crimes more flexible, although it still left it up to the discretion of judges. Nevertheless, several institutions are calling for greater changes in the law.