The case of El Diario, Página Siete, and Agencia de Noticias Fides (ANF)
Facts: In August of 2012, Bolivian authorities filed a law suit against three media outlets, El Diario, Página Siete, and Agencia de Noticias Fides, or ANF for allegedly distorting the words of President Evo Morales. Morales was giving a speech on food security when he stated “If there is no rain or if there is hail, then there is no food. But in the east, we only go hungry because of laziness.” The remarks were not received well by the public. Pagina Siete headlined an article following the speech titled “Evo says that if you go hungry in the east it is due to ‘laziness” while El Diario titled its article “Evo says that the east is lazy and they criticize him for being discriminatory.” The suit charged the media outlets with inciting racism and discrimination, with the intention to cause conflict between the ethnically divided east and west sides of the country. After the arrest, the presidential office took action to discredit these outlets, driving the founder of Pagina Siete to leave the paper.
Issue: The issue is whether the criminal lawsuit against three media outlets in connection with their coverage on President Evo Morales complied with the provisions of the International Covenant on Civil and Political Rights (hereinafter “ICCPR”).
Rule: Under international law, the following six elements are necessary for a prosecution on grounds of incitement to comply with the state’s obligation to respect freedom of expression.
- Legality: Restrictions must be provided by law and the law must be formulated with sufficient precision
- Legitimate grounds: Rights of others, national security, public order, public health or morals
- Necessity: Restrictions must be necessary for a legitimate purpose and they must be the only way to achieve protection;
- Proportionality: Restriction on expression should not be overbroad, it must be the least intrusive instrument amongst those which might achieve their protective function, and must be proportionate to the interest to be protected
- Intent: It must be clear that the defendant had the intent to incite discrimination, hostility, or violence when the case falls within the provisions of Article 20(2) of the ICCPR
- Causation: When a state party invokes a legitimate ground for the restriction of freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat and the necessity of the specific action taken, in particular by establishing a “direct and immediate connection between the expression and the threat.”
- Legality: Article 130 of the Bolivian Penal Code states that public incitement of a crime is illegal. However, this case deals with local media outlets that possess the right to freedom of speech as enumerated in Article 12 of the Migration Act. The Migration Act states that freedom of speech can only be limited if the speech is spreading political propaganda, inciting armed conflict, for reasons of maintaining national security or political order, or if it inciting national hatred, hostility, or violence. The headlines and coverage of Morales’ speech does not fall under any of these categories. There is no legal basis to arrest a media news outlet for reporting on political events, despite their being controversial
- Legitimate Grounds: The news articles do not threaten national security, public health, or welfare. The president’s words were unfavorable, however, the media did not harm any certain population by reporting the events.
- Necessity: Restricting entire outlets because of a disparaging headline is not a necessity in order to achieve protection.
- Proportionality: A government has the responsibility to restrict freedom of expression in the least invasive way, and only if absolutely necessary. By arresting and defaming the media outlets, causing people to doubt their credibility, the government put journalists out of work and restricted the public from three well-known local sources of news. There were no substantial reasons for Morales’ retaliation.
- Intent: The newspaper articles did not intend to incite violence or hatred against a group of people, although they suggest that President Morales might have. Journalists have the authority to report and diversify stories by writing them with a certain perspective. If an article is written with a left or right intent, it does not necessarily mean that there is an intent for conflict. It simply means that those who share that viewpoint will have an outlet to learn about these events as well. If El Diario, Página Siete, or ANF were reporting false stories, then there would be some question as to their intentions. However, reporting a story that is unfavorable to President Morales is not grounds for arrest and other consequences.
- Causation: As mentioned before, there is no correlation with the news articles and the incitement of any violence, hatred, or racism. Should any of these things arise, it would have a direct connection with Morales’ speech, rather than the articles that reported it. If Morales faces any backlash from these articles, it is merely a reaction to his own words.
Conclusion: The Bolivian government has deviated from its freedom of speech law by arresting well-known media outlets for an articles that report on a controversial topic that framed President Morales in a questionable light. Bolivia is responsible for the violation of the universal standard of freedom of expression under Article 19 of the ICCPR.