Comments to Online News and Freedom of Speech

February 15, 2017

The Supreme Court of Tucumán held that certain online comments – which referred to a judge on criminal matters – were protected by the right to free speech.

Recently, the Supreme Court of the Province of Tucumán reversed a decision which held the newspaper La Gaceta liable for third party comments posted on its website’s forum (Supreme Court of Tucumán, “Z. A. A. c/ L. G. S. A.”, Case No. C1153/09, November 22, 2016).

The facts were the following: La Gaceta Online published several articles on a criminal case. In response, some readers commented negatively on the judge presiding over the case on the website’s forum. The judge filed a court action against the newspaper seeking compensation for damages. The court of first instance ruled in favor of the claimant. The defendant appealed.

The Court of Appeals on Civil and Commercial Matters confirmed the lower court’s decision. It held that (i) the right to inform does not extend to unnecessary insults or offenses; (ii) the comments in question were offensive and slanderous; and (iii) the newspaper was negligent as a website administrator. It found La Gaceta negligent because its website moderator – in charge of deleting comments which were considered inappropriate – did not remove the comments which offended the judge; because La Gaceta did not comply with the rules it established for its own website, and because it failed to verify the information which users provided when registering on its platform.

Once again, La Gaceta appealed the ruling. The Supreme Court of Tucumán overturned the prior decision, stating that the comments posted on La Gaceta Online’s forum were protected by the right to freedom of speech. The Court held that: (i) the comments were not statements but third party opinions on a judge’s performance; (ii) the website acknowledged the source of the comments – the users – and only provided a platform, so it met the standard established by the Argentine Supreme Court in “Campillay”; (iii) verifying the information provided by the users was irrelevant, since the source of published content can be anonymous, and the comments would be interpreted as coming from unidentified people, allowing readers to assess their credibility; and (iv) freedom of speech must he held to a higher standard when the content in question refers to public officials.

Consequently, the Supreme Court concluded that La Gaceta was not liable for the comments posted on its website’s forum.