Paraguay: Court must consider freedom of speech in gender-based online abuse case

ARTICLE 19 calls on the Juvenile Court of Paraguay (Jueza de Primera Instancia de la Niñez y la Adolescencia del Quinto Turno) to consider international standards on free expression, in the case of a small human rights organization, TEDIC (www.tedic.org).

In the case, TEDIC, published an article about gender-based abuses online. The article included screenshots of a conversation on Facebook Messenger where a group of men chat about sexually abusing a journalist to “correct” her sexual orientation.

A journalist, who had access to the conversation, published the article on her Twitter account. TEDIC used the case to demonstrate the increase of gender-based abuse against female journalists and minorities. Subsequently, one of the individuals who was a part of the Facebook conversation filed a lawsuit against the journalist and TEDIC, arguing that the article damaged his honour, reputation, and privacy.

The key issue in the case before the Court is to consider the extent of the right to privacy and protection of reputation by disclosure of the Facebook Messenger conversation, the importance of the information to the public and the interest of freedom of expression and women rights, and the balancing of those rights based on the public interest.

ARTICLE 19 calls on the Juvenile Court to consider freedom of expression standards in the case. We believe that the ruling in favour of the plaintiff would amount to a violation of the right to freedom of expression of the journalist and TEDIC, and set a dangerous precedent for freedom of expression.  Such a ruling would deter individuals from reporting on gender based abuse online and women rights in general.  It would have a chilling effect on freedom of speech and women’s rights and effective journalism in the country.

Applicable international freedom of expression standards

The right to freedom of expression is a fundamental human right, recognized in international human rights law, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR) as well as in the African Charter on Human and Peoples' Rights, and other regional treaties, including the American Convention on Human Rights. The right to freedom of expression also protects electronic and Internet-based modes of expression.

Under international human rights law, freedom of expression can be limited only if the restriction complies with a three-part test, under which the restrictions:

• must be “provided by law”;
• may only be imposed for one of the legitimate grounds set out in Article 19 para 3(a) and (b) of the ICCPR: respect for the rights or reputations of others, and the protection of national security, public order (ordre public), public health or morals; and
• must be necessary and proportionate: necessity requires that there must be a pressing social need for the restriction; the party invoking the restriction must show a direct and immediate connection between the expression and the protected interest. Proportionality means that if a less intrusive measure is capable of achieving the same purpose as a more restrictive one, the least restrictive measure must be applied.

The right to privacy is also recognised in international human rights treaties.  The wording of Article 17 ICCPR prohibits “arbitrary and unlawful” interferences with the right to privacy. Under international human rights law, restrictions to the right to privacy can only be permissible if the same three-part test is met as that applicable to Article 19 of the ICCPR. ARTICLE 19 has also recently released The Global Principles on Freedom of Expression and Privacy that provide a comprehensive framework for balancing two rights. The Principles also explicitly recommend that when seeking to reconcile the right to freedom of expression and the right to privacy, courts should give regard to all the circumstances of the case, including the extent to which the publication at issue contributes to a debate of public interest.

As for protection of reputation, the utility of the three part test is elaborated in the Defining Defamation: Principles on Freedom of Expression and Protection of Reputation (Defamation Principles), recently revised by ARTICLE 19. These Principles have achieved significant international endorsement, including by special rapporteurs on freedom of expression. The Principles outline various defences that should be available to defendants in defamation cases, and exemption from liability in certain cases.

A number of international norms and standards relate to ending violence against women.  While the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) does not explicitly mention violence against women, the CEDAW Committee's General Recommendations 12 and 19 clarify that the Convention requires State parties to eliminate violence against women, as both a form and driver of discrimination against women, and make detailed recommendations in this regard.

The Declaration on the Elimination of Violence against Women defines violence against women as "any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life." Further provisions regarding violence against women were included in the 1995 Beijing Platform for Action, which also identified specific action for governments to take to prevent and respond to violence against women and girls. The UN General Assembly adopts bi-annual resolutions on the issue. Various regional instruments also address the issue, including theInter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará).

Issues to be addressed in the present case

ARTICLE 19 believes that the Paraguayan court hearing the case should consider these standards in the present case. In particular, we submit:

Exemption of liability in defamation cases:  The Defamation Principles also explicitly state that certain types of statements should be exempt from liability unless they can be shown to have been made with malice, in the sense of ill-will or spite. These should includestatements made in the performance of a legal, moral or social duty or interest. The need for enhanced protection for statements on matters of public interest has been explicitly recognised in the specific context of defamation laws.

In this case, the publication concerned the discussion on gender based abuse online and the threats of violence against female journalist.  As such, they constitute comment on matters of the utmost public and political concern. The challenged statements are part of an ongoing public debate in the country and how the protection against gender based violence should apply for online speech. Regardless of one’s views on the challenged statements, the point is to allow this very discussion to occur.

Public interest and privacy: It is well-established under international law that statements on matters of public concern deserve enhanced protection due to the key role they play in safeguarding democracy and the overall public interest. Although the protection is afforded to the speaker, the reason why considerable latitude should be afforded to public debate on issues of public importance is because the public is entitled to receive such information. Hence, similarly to above, in cases of balancing the freedom of expression and privacy, the court should consider the public interest of the publication. Even though the publication in question including the material discussed in the private Facebook chat, the publication contributed to public interest.

It is beyond any question that in this case the TEDIC article and the post by the journalist about the conversation on Facebook Messenger were true and concerned a matter of public concern, namely online gender-based abuse. ARTICLE 19 notes that gender-based abuse online has subjected to increasing concerns, including by international human rights bodies.  For example, on 8 March 2017, the UN experts on freedom of expression and on violence against women called on governments, companies and civil society organisations to tackle online gender-based abuse and violence, while also safeguarding freedom of expression. Hence, publications in this case by TEDIC and the journalists on matters related gender based abuse, undoubtedly relate to a matter of public concern. Accordingly, they fall within the scope of the principles outlined above.

Requirement of serious harm: Under international freedom of expression standards, plaintiffs should show “significant” or “serious” harm to their reputation in order for a claim in defamation to proceed or succeed. Such threshold tests may be applied, among other things, to defamation claims generally; to applications to strike out a claim as an abuse of process.  Hence, the Court should place the onus on the plaintiff to prove that the serious harm has been caused by releasing this true information in the public interest.

Conclusion

The central issue in the present case is balancing the right to freedom of expression of TEDIC and the journalist with protection of reputation and the right to privacy in matters of considerable public interest. International human rights standards show that courts and other authorities grant a high degree of protection to this category of statements, given the central role they play in open public debate and protection of women rights online. This is particularly so where the speakers are, as in this case, those whose position in society includes disseminating information in the public interest.

A finding in favour of the plaintiff would represent a very serious setback for freedom of expression in Paraguay. It would send a signal to all women who wish to report gender-based abuse online that any reporting and exposure places them at risk of sanctions. The consequence is likely to be a serious chilling effect on freedom of expression and women rights, to the detriment of the Paraguay public as a whole. A finding in favour of TEDIC and the journalist, on the other hand, would send a clear signal, both within Paraguay and around the world that the country’s commitment to women rights and freedom of expression is strong and will be rigorously upheld.