The last two months of 2014 witnessed some remarkable developments concerning freedom of speech in Lebanon, especially in matters relating to exposing corruption. These developments suggest that legal activism aimed at consecrating the principle that “‘defamation’ is a right when it is a duty”, has begun to bear fruit within the courts.

The rulings in question are also important because some of them came about as a direct result of interplay between two major public actors. The first are the courts concerned. The second are the social movements and rights groups defending the freedom to publicly expose corruption and the peddling of influence. The Legal Agenda dedicated its 15th Issue, published on March 14, 2014, to the debate between the media and the judiciary, which at the time was dubbed the “Court of Publications Battle”.

Before discussing these developments, I will briefly point out the extent to which such rulings are connected to the foundations of Lebanon’s political system. One of the rulings discussed in this article (see ruling by Jad Maalouf below), cited several studies that demonstrate a negative correlation between between press freedom and corruption. Applied to the Lebanese political system, this means that strengthening freedom of speech will likely lead to a relative decline in corruption, and the extent of arbitrary control that elites exercise over state resources, along with the political polarization this causes. Hence, affirming freedom of speech and similar values aids in the transition to democratic governance built upon the principles of equality and citizenship. Conversely, constraining free speech is no different from refusing to adopt a general budget or strengthen judicial independence. Both are tenants of the regime of elites [zu‘ama].

Summary Affairs Judge Jad Maalouf’s Ruling on November 26, 2014: The state has a duty to safeguard the active participation of citizens in exposing corruption.

In this case, an officer of Lebanon’s General Security filed a claim asking the Summary Affairs Court in Beirut, which examines urgent matters, to force a journalist (who was not named in the ruling) to remove a statement from his Facebook page. This statement accused the officer, by referring to his initials, of smuggling mobile phones through the airport. The officer justified his demand by stating that it harmed him, his job, his rank, and his position. The journalist who owned the Facebook page, on the other hand, stressed that the information in the statement was true and insisted on keeping it on his page in accord with the principle of free speech. He did not present any proof of the information’s truthfulness, only circumstantial evidence to that effect. For example, he pointed out that the officer was recently transferred from his position on account of his alleged transgressions.

In his ruling, Judge Maalouf referred to a number of considerations that have also appeared in his previous rulings. These include the right of citizens to access and know information in accordance with the Constitution and international conventions. However, this ruling was unique because it included a number of new considerations for balancing freedom of speech, in cases of exposing corruption against the need to protect personal reputations. The most important of these considerations are as follows:

The judge referred to the aforementioned close link between press freedom and the level of corruption in society. In this regard, the ruling did not just consider freedom of press to be one useful means of combating corruption. Rather, Judge Maalouf went so far as to stress that, in certain circumstances, press freedom may be the only means available of combating corruption. This alludes to his fear that the state’s apparatuses of oversight and accountability have become incapable of performing their role, making the media the only useful means of exposing perpetrators of corruption, or compelling said apparatuses to prosecute them. In this manner, the judge’s statement is an eloquent and succinct rebuttal of public claims that have objected to media exposures (usually portraying them as tabloid or yellow journalism). These objectors called for keeping the task of prosecuting corruption restricted to official channels, so that the honor and prestige of the individuals and institutions involved are protected. Some of the most prominent of these claims have been made by judicial authorities, and certain government ministers. Judges argue that in order to protect the judiciary’s prestige, voicing doubts about judges should only take place within official mechanisms of accountability. A number of government ministers have made similar objections against the campaign driven by Minister of Social Affairs Wael Abou Faour to expose institutions that violate health regulations.[1]

Judge Maalouf pointed out that corruption has dangerous effects on the economy as it is “one of the main obstacles to growth and development”. By doing so, he changed the conditions for balancing free speech against people’s right to have their reputations protected. Free speech ceased to be solely about civil and political rights. It became equally about social and economic rights, including the right to development.

The judge affirmed the role of public authorities (including the judiciary) in combating the scourge of corruption. The ruling repeatedly referred to Article 13 of the United Nations Convention against Corruption (UNCAC). This Article requires countries to take appropriate measures to, firstly, “promote the active participation of individuals and groups outside the public sector in preventing and combating corruption” and, secondly, raise awareness about corruption and its causes. The latter can be achieved, in particular, by guaranteeing that the public “has effective access to information”, and that the freedom to “seek, receive, publish and disseminate” it is protected, respected, and strengthened.

The judge affirmed that safeguarding press freedom in this context does not just enable the media to practice a right, but also to perform its duty to expose corruption. In this regard, he went so far as to address the sense of professionalism and citizenship within these media outlets. He called upon them to entrench this right and duty by exemplifying high ethical standards, and taking the necessary measures to ensure that the highest level of care and professionalism is maintained when examining and handling information.

In addition to making these considerations which seem to tip the scales in favor of free speech, Judge Maalouf also played down considerations about the personal reputations of public officials. In this regard, he cited mandated reasons he made in a previous ruling. The ruling corresponded to the case of Lebanese Member of Parliament Samy Gemayel against the newspaper al-Akhbar.[2] Back then, Maalouf contended that anyone engaged in public affairs or part of a public authority must surely forsake some of the protection granted to normal people, and may be monitored by the public in their work-related activities. Such an individual must show a high level of tolerance and acceptance.

On the basis of the aforementioned considerations, Judge Maalouf dismissed the claim without discussing the verifiability of the actions ascribed to the claimant. Summary affairs judges only intervene in cases when a specific right is suspected of being clearly violated. Accusing a public official of being involved in one way or another in an act of smuggling, however, may not warrant such an intervention. It is likely admissible, perhaps even a duty if the accusation is true. Therefore, summary affairs judges, according to the ruling, should stay their hands in similar cases. The aggrieved party has the right to go to the competent court (usually the Court of Publications in slander and libel cases) to prove in a public, and adversarial trial that an unjustified attack has occurred. In effect, the ruling indicates that if there is a possibility that the media accusations are true, the need to protect press freedom is more apparent than the need to inoculate the public officials involved against such accusations.

While this ruling was being made, another case –that which involved accusations of corruption levelled by al-Akhbar against the administration of the American University of Beirut (AUB), a private institution– was also before the Summary Affairs Court. This case is more delicate as it involves individuals from the private sector, not public officials, and relates to publishing private information protected by the right to privacy.

Exposing Corruption in a Private University: ‘Defamation’ and publishing private correspondence is admissible when a significant public interest is involved.

This case began when al-Akhbar published a number of articles about AUB, and then went on to publish private correspondence between university officials. The newspaper justified the publication of this correspondence on the basis that it contained a frank admission that corruption had occurred. AUB then filed a number of claims with the Summary Affairs Court in Beirut, demanding that one of the articles and all of the private correspondence published on the paper’s website be removed. It further demanded that the paper be barred from publishing any other AUB internal document.

While opposing the publication of articles has become commonplace, this was the first time that a Lebanese court had examined the legality of publishing private correspondence. The position taken by the court is obviously of great importance, especially given the spread of the phenomenon of leaking information and the prevalence of the theory of open societies. Notably, in the context of these cases Judge Nadim Zouein’s position has exhibited an extremely important evolution. Zouein effectively established a precedent that helps safeguard the freedom to expose corruption of not only public officials, but also of private sector institutions.

In his first ruling, made on November 19, 2014, Zouein focused on a literal interpretation of the relevant articles of the Penal Code, which penalize libel against individuals who are not public officials (Article 583), as well as the publication of private correspondence in order to protect the right to privacy (Article 581). Zouein did not give any weight to the veracity of the information published, the intent, or the media’s duty to expose corruption. Applying the two penal code articles in this manner effectively forbids the exposition of corruption in any private institution or company, regardless of the size of the institution or company, or the amount of corruption involved.

In a matter of days, however, Judge Zouein freed himself of this literal interpretation of the Penal Code. In a ruling made on December 12, 2014, he adopted a position that was more in keeping with the general principles of free speech, particularly when public interest must be balanced against the right to personal honor. This occurred in a case in which the same university sought to bar the same newspaper from publishing any internal documents or private correspondence.

The main difference between this case and the last –and the element that prompted the judge to alter his perspective– is that this time a sample of the “private correspondence” the university sought to bar from publication was presented. In one such correspondence, the university administration admitted that one of its doctors had declared a large number of fictitious operations, thereby billing the state for vast amounts of funding. Faced with this fact, the judge began to understand the practical dimensions of his first ruling: it would blind the public to acts of corruption that cause great damage to public interest. Instead of viewing al-Akhbar as a paper that needed to be stopped from damaging dignities that should be protected, he now saw it as a paper playing a key role in exposing corruption, a role which it should be encouraged to pursue.

Judge Zouein may have been influenced by trends in international law related to this issue. In particular, al-Akhbar raised the ruling made by the European Court of Human Rights on December 4, 2012, which allowed the publication of private correspondence if it is connected to a significant public interest.

Given these considerations, the judge introduced his statement of reasons by affirming the principles that public interest trumps private interest, and that the public has a right to know. Accordingly, he went on to prohibit the publication of any private AUB correspondence that is not “necessary and important” to a significant public interest. In practice, this means that the publication of any correspondence that does have a significant bearing on such an interest is permissible. Zouein, like Maalouf, stated that it is not up to summary affairs judges to determine the extent of the public’s interest in relation to the publication of a specific document; that must be done in a public and adversarial trial before a Court of First Instance (the Court of Publications). Hence, the need to protect free speech becomes more apparent than the need to inoculate private institutions against any and all accusations of corruption.

Zouein’s ruling has two noteworthy dimensions. Firstly, it establishes an important precedent in allowing the publication of private correspondence “whenever there are exceptional circumstances that call for it, such as a threat to the integrity or security of the state, or whenever it is necessary and important to a significant public interest, to the extent that privacy considerations may be sacrificed”. Secondly, it establishes an equally important precedent of the Lebanese judiciary declining to apply the criminal code to certain cases, in recognition of the supremacy of the general principles of the law, and the need to interpret individual articles in a manner that adheres to them.

This is likely to clear the way for protecting free speech in Lebanon, especially in cases of exposing the corruption of individuals outside the public sector. Finally, we must note Judge Zouien’s willingness to engage with legal opinions and social discourse, and to evolve his position in light of public interest needs.

The Summary Affairs Court was not the only judicial branch to witness a development of this kind. By the end of 2014, legal activism had also gained remarkable ground in first instance courts, namely the Court of Publications. The latter’s actions were the subject of a highly important battle earlier in the year.

The Court of Publications Endorses the Right of Citizens to Expose the Corruption of Public Officials

Positive developments at the Court of Publications in Beirut took place on November 17, 2014 in three separate libel cases that public officials (two judges and one former minister) had filed against various media outlets. With these rulings, the court reopened trial proceedings to give the defendants an opportunity to prove that the acts they reported had truly occurred. The court justified this on the grounds of press freedom and the proper administration of justice, citing Article 387 of the Penal Code, which exonerates those accused of libel against public officials in connection to their work, if the supposedly libelous statements are proved to be true.

This represents a marked change from the position the court had taken in similar cases earlier in the same year. In the cases of Siniora v. al-Akhbar & Rasha Abou Zaki, and that of Judge Randa Yaqzan v. al-Akhbar & Mohamed Nazzal, the court had ruled against the journalists, prompting widespread opposition from a number of media outlets on the basis of the media’s duty to expose corruption.[3] The court’s change in perspective came in the wake of this opposition. At the time of the trials, al-Akhbar argued that convicting journalists of libel without regard for the validity of their statements, in effect, protects corrupt parties and thus protects the powerful against any and all criticism.[4]

By extending the November trials to allow the journalists to prove their allegations, the Court of Publications, like the Summary Affairs Court, demonstrated a commendable willingness to act in sync with the social movement to defend press freedom, and as such, reconsider early judgments that had been proven as incorrect.

Despite this positive and consequential trend, the court’s interpretation of Article 387 is a cause for concern. Good intent was cited as a precondition for the article to come into effect. In other words, the motive for disclosing information may only be public interest. No personal, financial, or hostile aim, nor a desire to harm an official’s honor, may be involved.

Article 387 makes no such stipulation. The article presumes that good intent is always present when breaches of public service are exposed, because such exposures are beneficial in and of themselves, regardless of the motives behind them. Stipulating good intent for the journalist to be exonerated opens the door for officials breaching their public duty, to inoculate themselves against criticism by hiding behind the intentions and motives of those who dare to criticize. Furthermore, in cases in which the journalist proves the veracity of the acts reported but fails to prove good intent, this new condition criminalizes their legal actions. This violates the principle that no crime exists without a pre-existing penal law.

Nevertheless, the stipulation of good intent is a marginal one. It should not obscure the importance of the legal accomplishments that the aforementioned judicial bodies have helped achieve with remarkable, if uncoordinated, concord and solidarity. Of course, this concord and solidarity was not demonstrated by the courts and the judiciary alone, but also by media and rights organizations which played an enlightening, catalytic role in bringing these rulings about.

This article is an edited translation from Arabic.

 

__________

[1] See: Nizar Saghieh’s, “What Does the Experience of a Minister Who Defended the Public’s Right to Safe Food Teach Us?”, The Legal Agenda, Issue No. 23, December 2014.

[2] See: “The Summary Affairs Judge in Beirut Brings Down the Flattery State”, The Legal Agenda, August 23, 2013.

[3] For more on this subject, see: The Legal Agenda, Issue No. 15, March 2014.
[4] See: “We Refuse to Appear Before an Extraordinary Tribunal”, al-Akhbar, February 27, 2014.