IPI

Relatório do IPI sobre o crime de difamação em Portugal (2015)

Highlights (bold meu):

A) The selection of Portugal as a target country for IPI’s advocacy efforts on defamation laws was based on two considerations:
1. The existence of outdated criminal defamation provisions in Portugal that fail to meet international standards by an alarmingly wide margin; and
2. An unusually high number of condemnations of Portugal at the European Court of Human Rights (ECHR) for violations of Art. 10 of the European Convention on Human Rights, many of which concerned the application of defamation laws. (p. 8)

B) To be sure, the Criminal Code explicitly provides the defences of truth and good-faith for statements made in support of “legitimate interests” or to exercise a right. Nevertheless, IPI notes that the mere threat of criminal prosecution, particularly for journalists without access to adequate legal representation, can be sufficient to produce self-censorship. This is particularly the case under Portuguese law, which offers increased protection to those in positions of power. (p. 10)

C)  The notion that the activities of public officials must be open to scrutiny by the public reflects a basic understanding of democratic accountability and has been a bedrock on the jurisprudence of the ECHR since its landmark 1986 decision in Lingens v. Austria. The Portuguese Criminal Code inverts this standard completely. (p. 11)

D) The provisions noted here, and in particular Art. 332 reflect an outdated, authoritarian tendency to shield the State from criticism and stand in contrast to the ECHR’s oft-repeated maxim that freedom of expression includes the freedom to express views that “shock, offend, and disturb”. (p. 11)

E) Between January 2005 and 2015, according to statistics from the ECHR’s official database, Portugal was condemned 18 times for violating Art. 10. Only three EU states had more Art. 10 condemnations: France (22), Poland (21), and Romania (20). Moreover, among all 28 EU states, the average number of Art. 10 convictions was approximately six (6.46), with four states having no condemnations at all and 10 having just one or two violations. Portugal, with 18, had therefore three times as many Art. 10 condemnations as the average EU state during this period. (p. 13)

F) The Portuguese Civil Code was promulgated in 1966, in the waning years of the authoritarian Estado Novo regime. Although Portuguese jurisprudence has clearly evolved, the law itself remains antiquated. (p. 18)