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News Lawyer: Press Should Be More Aggressive

A painting of a door chained shut hangs in the office of veteran press lawyer Fernando Guier. The door reads “Colegiación periodismo,” and the lock represents Guier’s successful battle, together with The Tico Times, against obligatory licensing for journalists.
More than two decades after Guier, 74, agreed to defend Tico Times reporter Stephen Schmidt against the Costa Rican Journalists Association, he is still representing journalists and railing against judges who convict them. He charted his travails in a recently published book, “Praise to Rebelliousness.”
The “office” wing of Guier’s sprawling house in Escazú, a western suburb of San José, is filled with law books from his father, a former Supreme Court chief justice. Sitting with a darkroom to one side – he is an amateur photographer – and a collection of classic movies on the other, Guier spoke to the newspaper about the ups and downs of media law:
TT:You started as a general lawyer. How did you decide to specialize in media law?
FG: It started with Stephen Schmidt. That case had such resonance that the daily La Nación hired me. Next thing I knew, I was in (press law) up to my neck. Ah, my great friend. I remember Stephen Schmidt. No one wanted to pay attention to his trial. They said it was a lost cause.
Is there a First Amendment type law here, as there is in the U.S. Constitution, that protects freedom of speech and press?
Here the constitution says there is press freedom except when it conflicts with the law. That really opens the door. On the other hand, the U.S. First Amendment says that Congress can’t pass any law that violates freedom of expression.
What have been the biggest obstacles for the press in this century and the last?
First, censorship by the Supreme Elections Tribunal. (In the 1970s,) newspapers could not publish political advertisements by parties and individuals without first consulting the tribunal. Elections officials were very strict. They rejected a lot of advertisements. The Constitutional Chamber of the Supreme Court (Sala IV) eventually declared that practice unconstitutional.
But it was a long fight. The other was the case of Mauricio Herrera. There was a Costa Rican diplomat in Europe (Felix Przedborski) who was criticized by the European press. Mauricio summarized the criticism and published it in the daily La Nación. The diplomat accused Mauricio of defamation, and he was found guilty. We had to go to the Inter-American Court of Human Rights, which nullified that verdict.
What cases are you working on now?
Two cases for La Nación. I’m waiting on the final results. In one, a journalist wrote about a police officer in the Southern Zone who had been through some criminal trials.
The police officer said the article caused him trouble in the community, and he sued the journalist and the Prosecutor’s Office for defamation. The tribunal initially found both innocent. But it required them to pay an indemnity. As I understand it, if both are innocent, they cannot be forced to pay. In the other case, an art critic published a column criticizing a movie. The movie’s producer accused him of defamation.
You say that under current defamation law, a journalist can go to prison for three months for injuring someone’s honor. The burden is on the journalist to prove that the statements he made are true. How should this law be changed?
The prison sentence, the presumption of guilt – all that has to change. The person making the accusation should have to prove the statements are false. If he succeeds, there should be a civil penalty, not a criminal one.
A fine representing harm caused. There has to be room here to criticize public officials.
To date, no one has gone to jail (under this law). But the danger remains.
Has the Sala IV weighed in on this law?
The Sala IV said the law was valid, including the prison sentence. It said this in a ruling May 3 (2006). That’s the day of freedom of expression. Totally ironic.
Are newspapers limited in what they can publish now?
They can print everything except state secrets. A state secret has to do with national security. The Sala IV understands this and has always supported journalists in their search for information.
Are journalists able to protect their sources?
Sources are secret, even if there are state interests at play. The tribunals have respected this.
What do you think of the quality of reporting here?
The press is doing a good job, but it could do better. It could be more aggressive, more critical of the government and of politicians. The electoral campaigns are in two years, and we need information.

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