Suing for defamation in Mexico can be tricky business. As we all know, the world can be a cruel place, especially when someone writes a completely made up story about you that damages your reputation. Or, perhaps you write an online article and get accused of defaming another person, which results in a lawsuit.
Defamation is one field of the law that attracts, in my opinion, the most confusion in Mexico. Whether this is in the form of slander, via spoken word, or in the form of libel, which requires written, broadcast or otherwise published words, there is always uncertainty.
The difficulty in establishing a clear boundary between freedom of expression versus the right to one’s reputation just complicates the matter.
In Mexico, unlike the U.S., we have another form of defamation called calumny, which is committing a crime by spreading or publishing a falsehood when you know it is not true, or with ‘reckless’ contempt of the truth.
Defamation consists of attributing to any person, in their presence or before others, a determined fact, which if true, would entail a criminal or disciplinary proceeding against such person or would expose the person to public hate or contempt. Calumny consists of falsely attributing a crime to someone and is punishable by imprisonment for up to six years and a monetary fine.
Calumny is a criminal offense, especially if the comments are perceived to be very serious. And although the prospect of saddling someone with a criminal record for such a matter might seem repressive, thankfully Mexican courts generally favor free speech over individual reputations and libel cases are rare.
Libel and slander in cases concerning matters of public interest have been decriminalized and are no longer punishable by imprisonment, although fines can still be issued where “malice” – defined as a deliberate intention to harm another person – is found.
Slander consists of any offense other than defamation, made by a person against the “honor, honesty or decorum” of another person that is expressed either in words, writings or fact, while libel is a written or broadcast form of defamation.
This effectively eliminates criminal libel, and slander at the federal level, making Mexico the second country in Latin America to repeal criminal libel laws. However, libel law is secondary in many nations, since outright government persecution of journalists takes place under sedition or censorship laws.
In other countries, particularly the United States, draconian libel laws have almost created a culture of silence in some areas of the media.
It is true to say that some publishers appear cowed – and are put off pursuing stories – due to the threat of getting a letter from a legal firm. This is heightened when knowing that American libel law is notoriously skewed in favor of the person making the claim. Payouts are also often massive.
Fortunately, Mexico’s legislators do not share these views and therefore the number of defamation cases is comparatively low. The sums awarded are also reduced and interim injunctions, super-injunctions and other gagging orders are almost unheard of.
If you were to ask a lawyer how to word a certain comment or communication to avoid legal letters, most would not know what to say because Mexico does not have that type of culture.
The bottom line is to ensure that you are fundamentally telling the truth as accurately as possible. Also, limit content that may be viewed as insulting or demeaning.
If those two requirements are met, then you can probably resort to generous doses of irony, sarcasm, caricature and humor as they all form part of the right to freedom of speech and expression in Mexico.