Media Bill Languishes in Congress
By Daniel Zueras
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 criticizing 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."
Article 7 of the press law, which provides
for up to 100 days imprisonment for "crimes
against honour" (resulting in a person
feeling slighted or insulted), would be
repealed by the bill, as well as Article 149
of the criminal code, which at present
reverses the burden of proof, stipulating
that those accused must "prove the truth" of
their statements.
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 commercialization 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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