An opinion regarding a public official or former official cannot be treated the same as a news report. The Supreme Court has established when a column is protected by freedom of expression and when it may result in civil liability.
Yes, but it is not enough for the person mentioned to simply consider the publication false or damaging to their reputation.
The First Chamber of the Supreme Court of Justice of the Nation ruled on a case in which a former public servant sued a journalist for moral damages over a column published after the official had left office.
Although the journalist had been acquitted in the first instance, an appellate court overturned that decision and ordered them to pay compensation.
The Supreme Court took up the case and granted the journalist an amparo, establishing criteria that are now mandatory for all judges in the country.
This criterion has been developed and reaffirmed by the First Chamber in various jurisprudence theses published in the Federal Judicial Weekly, with digital records 2030841, 2030840 and 2020798, which specify the standards applicable to opinions, information, and opinion columns related to matters of public interest.
The Court starts with a simple distinction: facts can be true or false, whereas opinions, by their very nature, cannot be subjected to that same scrutiny.
Therefore, when an expression refers to a matter of public interest, three distinct scenarios may arise:
1. Opinions: these are value judgments or ideas that do not claim to prove a fact. In principle, they enjoy constitutional protection.
2. Facts: when objective information is transmitted, liability may arise if it is proven that it was false and that it was disseminated knowing it was false or with total negligence in verifying it.
3. Opinions based on facts: this is the most relevant scenario for opinion columns. Here, there must be sufficient factual support and responsible diligence in verifying the data used.
The Court distinguishes between two situations:
If the facts used are public or can be verified by the reader, the opinion will, in principle, be protected by freedom of expression.
If, on the other hand, the columnist introduces facts that the public cannot verify, protection will depend on whether they conducted a diligent and sufficient investigation before publishing them.
In other words, the Court does not require a journalist to have absolute certainty about every piece of data they publish. What it requires is that there be a reasonable basis for supporting what is claimed.
The so-called actual malice standard sets a high threshold for determining when a publication can lead to liability.
It is not enough to prove that the information was false. Rather, it must be proven that it was published with the knowledge that it was false or with reckless disregard for its truth, as simple negligence, a mistake, or an investigation that did not yield the expected results are not sufficient.
The reason is clear: if any error could lead to a conviction, it would ultimately discourage investigation and debate on matters of public interest.
The message from the SCJN is clear: the discomfort of a public official or former official regarding an opinion does not, in itself, make that publication an unlawful act.
Journalists and columnists have a wide margin to question, criticize, and express opinions on matters of public interest; however, when those opinions are built upon facts, they must have sufficient support and, when necessary, be backed by diligent research.
On the other hand, anyone who believes a publication has harmed their reputation will not only have to prove that an error occurred; they must demonstrate circumstances that lead to the conclusion that the author knew the information was false or acted with reckless disregard for verifying it.
The balance the Court seeks is, ultimately, between two fundamental rights: protecting an individual's reputation without turning that protection into a tool to limit public debate.
At RRQB Legal Solutions, we support media outlets, journalists, and communication companies in managing legal risks related to freedom of expression and civil liability. Discover more legal content on the RRQB blog.
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