Portugal

Flag_of_Portugal.svg

Flag of Portugal

By John Hernandez

I. Introduction

Portugal enjoys broad press and speech freedoms, as evidenced by its ranks and scores in standards by independent watchdog organizations. Portugal is No. 23 out of the 180 countries ranked in the 2016 World Press Freedom Index by Reporters Without Borders (“Portugal”). Portugal also achieves high marks in Freedom House’s scores on Press Freedom (18 out of 100—lower is better) and Overall Freedom (97 out of 100—higher is better) (“Portugal”). The Cato Institute, a libertarian think tank, ranked Portugal as No. 18 (PDF link) out of 159 countries in “Personal Freedom,” which incorporated a grade of 9.32 out of 10 in freedom of “Expression and Information.”

Portugal’s World Press Freedom ranking has been trending upward since 2014, moving from No. 30 to No. 23 in that period, but this is a decline from its Top 10 rankings in 2002 and 2007.

II. Historical Background

Portugal, officially known as the Portuguese Republic, is located on the Iberian Peninsula in southwestern Europe. It is bordered by Spain to the east and the Atlantic Ocean to the west.

According to the 2017 CIA World Factbook, Portugal has an estimated population of 10,833,816 as measured in July 2016. Lisbon is Portugal’s capital and largest city. Porto is the second largest city. Both cities are located along the coast. The country is predominantly Roman Catholic with 81 percent of the population over 15 years of age classified as such (“The World Factbook”).

Portugal’s coastline has defined much of its history and culture. Currently, according to USA Today, Portugal is renowned for its maritime history; its monuments, many of them UNESCO World Heritage Sites; its famous “Port” wine made exclusively in the Douro Valley; and its beaches. It’s known for the concept of “saudade”, defined by National Public Radio as “a melancholy nostalgia for something that perhaps has not even happened,” (Garsd) which is exemplified by “fado” music, Portugal’s own version of the blues.

Portugal was recognized as an autonomous kingdom in 1143 and has maintained the same frontiers since the thirteenth century. That relative stability stands in contrast to the more frequent redrawing of borders in the European continent through the last 300 years. The distinct Portuguese national identity has been comparatively constant, especially due to “the absence of competing historical legacies” within its borders (Monteiro and Pinto 48-50). As recently as 2000, about 91 percent of the country’s population was classified as ethnic Portuguese (Kaplan and Opello).

This cultural consistency combined with Portugal’s embrace of the sea allowed for Portugal to become continental Europe’s greatest power during the 16th century. However, this prosperity was funded by their dominance in the transatlantic slave trade around this time, which they are credited with inventing. This coincided with Portugal’s establishment as a colonial power, most famously in the form of its discovery of Brazil in 1500 (Crowley 12-13).

Instability followed Portugal afterward. Sebastian Royo describes Portuguese history as an “upside-down V” where the peak of Portugal’s power was followed by a steady decline into the dictatorship of António de Oliveira Salazar’s “Estado Novo,” or New State, in the early 20th century (2). Portugal turned a corner from this low point after the bloodless Carnation Revolution of 1974 began its transition into a parliamentary democracy (Ortiz-Griffin 159). As The New York Times reported in 2007, Salazar’s time in power has left a mark on Portugal with which the country is still coping, despite the move towards progressivism and a democratic form of government (Bilefsky).

Portugal held its first democratic elections in 1975, five years after the death of Salazar. There were six governments between 1974 and 1976 before a constitution was established in 1976 (Ortiz-Griffin 160-163). That constitution is still in effect today.

The constitution established a presidency with a five-year term. The president is responsible for appointing the prime minister with input from the Assembly of the Republic, the 230-member legislative branch of Portuguese government (“Portugal”). The prime minister is the head of the government in Portugal and nominates a Council of Ministers that are appointed by the president to form the government. The Council of Ministers is responsible for establishing an initial policy agenda and the resulting bills that the Assembly must approve, which forms the primary basis of governmental decision making in Portugal (“The World Factbook”). When a new Assembly takes office, either through Assembly elections every four years or the dismissal of the previous government, a new government is formed (“The Government: Portuguese Democracy”). Both the president and the Assembly are elected directly by Portuguese citizens over 18 years of age (“Voting: Portuguese Democracy”).

The highest courts in Portugal are the Supreme Court and the Constitutional Court. The 12 Supreme Court justices have lifetime appointments after being nominated by the president and confirmed by the Assembly. The 13 Constitutional Court judges have six-year terms with 10 of them being elected by the Assembly and three of them elected by the other judges on the court. The constitution can be amended by the Assembly with a two-thirds majority vote (“The World Factbook”).

III. Free Speech

Portugal’s emergence as a democracy was born out of the civilian dictatorship of António de Oliveira Salazar. He was an economics professor at the University of Coimbra. In 1928, Salazar accepted the position of finance minister when military officials that had taken over the preceding parliamentary government agreed to give him unilateral control over the budget. Two years after his appointment, Salazar proposed making Portugal an “authoritarian corporate republic,” which would require getting rid of all political parties and unions; implementing total censorship; and vesting political power in the executive. This was Salazar’s vision for his “Estado Novo” (Machado 50-53). He was appointed prime minister in 1932 and held the position for 40 years (Ortiz-Griffin 159). Decrees passed during 1927 and 1933 respectively outlawed the showing of immoral films and created censorship committees (Machado 82-83). Salazar, a devout Catholic, fashioned “God, country, and family” into prevailing ideology of his rule.

In 1960, a British lawyer named Peter Benenson read a news story about two students jailed in Portugal for “toasting” freedom. The Salazar government’s repression inspired him to begin the human rights group Amnesty International (Sellars). Amnesty International has become one of the preeminent human rights organizations in the world, whose mission is to defend the United Nations’ Universal Declaration of Human Rights, which includes freedom of expression.

Salazar’s tactics continued until the end of Portugal’s authoritarian regime and the establishment of the 1976 constitution. Julia Ortiz-Griffin points out that the preamble of this constitution is a resounding rejection of the authoritarian rule that preceded it, “This revolution, the preamble continues, restores to the Portuguese people their fundamental rights and liberties” (163).

Article 37 of the Portuguese Constitution states, “Everyone shall possess the right to freely express and publicise his thoughts in words, images or by any other means, as well as the right to inform others, inform himself and be informed without hindrance or discrimination.”

Censorship is also disallowed by Article 37, but any criminal infractions committed during the exercise of said rights are subject to criminal prosecution.

This is key because Portugal remains one of the only European countries where defamation is a criminal offense (“Portugal”). This was the main criticism levied against Portugal by both Freedom House and Reporters Without Borders in matters of free speech and free press. Francisco Teixeira da Mota, a Portuguese human rights attorney, explains that conservative views on defamation and honor might be a remnant of Portugal’s past, “It is a clear and unfortunate indication of the authoritarian concept of power in Portugal and reinforces a restrictive vision of free expression that has always prevailed in Portuguese society” (Griffen, “Expert: Portuguese Libel Laws Reflect ‘authoritarian Concept of Power’”).

Criminal defamation is punishable by imprisonment, and charges can be brought by a private party. Punishments are increased by 50 percent when the victim is a public official and there is even a limitations period of 50 years for “seriously offending the dead”. Related laws punish the offending the honor of institutions run by public officials; insulting the state, anthem or flag; and insulting the flag or official symbols of other states (Griffen, Briefing: Criminal Defamation in Portugal).

Between February 2005 and February 2015, Portugal had 18 condemnations of its defamation laws by the European Court of Human Rights, which was three times the number of condemnations for an average EU state (Griffen, Briefing: Criminal Defamation in Portugal). The European Court of Human Rights (EHCR), part of the Council of Europe, protects freedom of expression through its enforcement of the Convention for the Protection of Human Rights and Fundamental Freedoms. Portugal is a signatory to that agreement.

In Do Carmo de Portugal e Castro Câmara v. Portugal, the ECHR ruled against Portugal in 2017 in a defamation case involving a professor that had been convicted of aggravated defamation in 2010. The professor had an opinion piece published in a national newspaper that was critical of his former boss at the Portuguese Meteorological Institute. The Court ruled that the opinion piece concerned matters of public interest, particularly the management of a public institution, and are allowed a modicum of exaggeration and provocation.

This stands in contrast with the 2015 decision in Almeida Leitão Bento Fernandes v. Portugal. The ECHR ruled in favor of the Portuguese government in a case involving an author’s decision to use her husband’s salacious family history as the subject of her novel, “The Palace of flies.” The novel was written under a pen name, was distributed to about 100 people and came with a disclaimer that any similarity to real events was coincidental. The author’s in-laws proceeded with a criminal complaint that was initially rejected by a Portuguese court before being appealed and leading to the author’s conviction on defamation charges. The ECHR accounted for Portugal’s discretion in manners concerning defamation, its “margin of appreciation,” and ruled against the author.

In 2004, as reported by Rewire, a case unrelated to defamation, Women on Waves and Others v. Portugal, involved three organizations that promote women’s reproductive rights. One of the organizations, Women on Waves, chartered a ship to sail into Portuguese waters to promote debate on abortion, which was outlawed and actively prosecuted in Portugal at the time. Though Women on Waves had previously chartered ships to visit countries then sail into international waters to perform abortions legally, this ship, the Borndiep, was only going to be used as a meeting space to discuss prevention of sexually transmitted diseases, family planning and the legalization of abortion. A government order led to a warship blocking the Borndiep’s entry into Portuguese waters (Anna Wilkowska-Landowska).

Requests and appeals to Portuguese courts asking to permit the ship’s passage were turned down, and Women on Waves decided to appeal to the European Court of Human Rights. The court ruled that Portugal had violated its article on freedom of expression and reproached officials for using a warship to “chill” Women on Waves’ work (Anna Wilkowska-Landowska).

Much like Portugal’s transition to a democratic form of government, the reworking of Portugal’s defamation laws could be in the works. In a case involving a famous Portuguese TV personality, Sousa Goucha, Portuguese courts dismissed his criminal complaint of insult and defamation against a TV show that asked: “Who is the best Portuguese female TV host?” Goucha, who is gay, took offense when the show declared him the correct answer to the question. Portuguese courts ruled that there was no intent to offend or defame though the joke may have been distasteful (“Global Freedom of Expression”).

In March 2016, the ECHR agreed with the decision of the Portuguese courts noting that the Portuguese courts opted to defend freedom of expression over Goucha’s reputation.

In January 2017, the Portuguese Supreme Court ruled in favor of an ex-detective who had implicated the parents of Madeleine McCann in their daughter’s disappearance in a book he authored about the highly publicized case. The former detective, who led the investigation, had lost a libel suit and had been ordered to pay damages to the couple.

The trends in these cases and other events in Portugal, like relaxing restrictions on abortion and allowing for same-sex couples to adopt, point to a continued movement towards progressivism that began with the end of Salazar’s administration and the adoption of the Constitution of 1976. It is a deliberate process, compounded by Portugal’s demographic homogeneity and time under Salazar, but signs of a trend are tangible, especially in Portugal’s improvement in recent press freedom rankings.

IV. Free Press

Censorship prevailed during Salazar’s time in office. However, even after his death, censorship was not abolished for some time.

Defamation laws remain the most visible thorn in Portugal’s side when assessing its free press practices. Considering Portugal’s winding road to establishing its current democracy, the possible chilling effect of criminal prosecution is a dominant concern.

There are other influential factors, however. The precipitous fall from No. 8 to No. 30 in World Press Freedom Index rankings from 2007 to 2009 is related to the passing of a “Journalist’s Statute” that imposed new regulations on journalists.

The 2007 law makes it permissible for Portuguese courts to order journalists to divulge confidential sources in cases where the security of the state or organized crime is involved. The law established licensing requirements for journalists and relaxed some employment and usage protections in favor of employers and media companies (“Journalist’s Statute”).

The statute does reaffirm the Portuguese Constitution’s stance on a free press, outlined in Article 38, which states, “The freedom of the press shall be guaranteed.” The statute expands on that constitutional mandate by saying that journalistic “freedom of expression and creation shall not be subject to any impediments or discriminations nor shall it be subordinated to any type or form of censorship.”

But, in 2014, the statute’s allowance for outing sources was upheld by Portuguese courts. The Portuguese journalist’s union, the Sindicato dos Jornalistas, had appealed a police search of a freelance journalist’s home in court. According to the court, computers that were seized during the search were not protected as journalistic materials (“Portugal”).

The search for sources has created tension between the press and the government. In 2010, a Portuguese newspaper revealed that the Strategic Defense and Intelligence Service, Portugal’s foreign intelligence agency, illegally accessed a journalist’s phone calls and messages in search of a source for an article (“Intelligence Agency Spied on Newspaper Reporter”).

The tension is also exacerbated by the same defamation laws that influence free speech in general. Between February 2005 and February 2015, 12 of the 18 defamation condemnations by the ECHR had to do with criminal defamation cases. Of those 12 cases, six involved a journalist, editor or publisher (Griffen, Briefing: Criminal Defamation in Portugal).

The EHCR continues its practice of condemning Portugal in defamation cases. In a 2017 ruling, the court ruled in favor of José Manuel Fernandes, a newspaper publisher, who had criticized the election of a new president to the Portuguese Supreme Court in an editorial. Portuguese courts had awarded the defamed judge significant damages and had allowed the defendant’s wife to be incorporated into the case despite her lack of involvement, which the ECHR criticized. The court cited defending discourse in matters of public concern and the visibility of public figures as prevailing reasons for protecting Fernandes’ speech.

V. Critical Comparison

The balancing of Portuguese democratic principles, which prevailed 200 years after they did in the United States, and the preservation of cultural identity and honor, which matters less in the United States due to the diverse composition of the American population, means that these two countries have taken different paths to being protective of free speech and free press.

However, Portugal scores and ranks better than the United States in the World Press Freedom Index and Freedom House’s scoring models. Though the United States is unequivocal and direct in its protection of free speech and a free press in the U.S. Constitution, as stipulated in the First Amendment, that straightforward simplicity doesn’t always apply in practice. The establishment of what the First Amendment means has been a complicated process extending over more than 200 years. Portugal is in the nascent stages of that process and timeframe. Recent trends in rankings and in the rulings of prominent cases indicate that Portugal continues trending towards more freedom in speech and in press.

Portugal is a country that is comfortable with having to refresh itself. That is evident in their system of government, which can be dismissed in a moment’s notice and requires coalition building to get anything done. The United States, despite its own questionable legacy in some historical matters, has been served well by its democratic constancy and steadiness. However, that can leave the United States vulnerable to its own collective hubris when its democratic institutions are challenged. U.S. citizens are used to their venerable constitution respecting free press and free speech, and they have no memory of a dictator ever seizing control. This leads to the sort of complacency that might explain the fall from ranking as high as No. 17 in 2002 to ranking No. 41 in 2016 in the World Press Freedom Index.

Both countries contend with the cultural and societal insecurities. For example, repression of minorities and their opinions has long been a problem in the United States, whereas Portugal endured 40 years of operating under Salazar’s rule. As a result, partisanship has become more prominent in the United States, while Portugal tries to escape the influence of authoritarianism. Though Portugal is relatively homogeneous it benefits from the outside influence of the rest of Europe, as evidenced by the ECHR’s involvement in matters of free expression. The United States, on the other hand, benefits from its own internal diversity.

These distinctions have led to different ways of handling issues pertaining to free speech and a free press. Defamation is much less of a concern in the United States due to Supreme Court decisions like New York Times Co. v. Sullivan that delineate a specific standard for unprotected speech with the presumption that the speech is protected by the First Amendment. Portugal makes no such presumptions in matters of defamation, but it appears to be establishing precedents.

Likewise, Portugal has taken a statutory approach to the licensing and regulation of journalists, while the United States frowns upon such restrictive regulations. Nevertheless, Reporters Without Borders criticized the United States for its crackdown on whistleblowers and for not enacting a shield law to allow journalists to protect their sources. These are two sides of the same problem. Both countries are trying to balance what they deem to be compelling concerns with the aspirational rights enshrined in each of their constitutions.

VI. Conclusion

The difference between practicing and promising freedom in the United States and Portugal has manifested into two ways of dealing with freedom of the press and expression.

Portugal must deal with its problems in an ongoing public manner, as many of its cases head to the ECHR because its most restrictive limitations to free speech and a free press are the law of the land. This emphasizes practice and action over the promise of freedom, but it is leading to better results.

Americans that see the United States is the freest country in the world might be surprised to see that a country with more restrictive laws and a much newer constitution is deemed freer by third-party ranking systems. The United States has a longstanding constitution and common law precedents that foster the promise of freedom, but, in practice, that can be illusory. In the United States, it can be difficult to see that there is still room to improve, as Reporter Without Borders suggests, with the handling of whistleblowers and a universal shield law.

Portugal is a democracy that is finding itself after surviving the trauma of authoritarianism. The United States, with a legacy of freedom woven into its First Amendment protections and cultural identity, presumes that the status quo will be enough. In the ongoing process to define freedom of the press and freedom of speech, the United States settles on a historical record of getting it right. Portugal has had to hold up a mirror to its own mistakes, epitomized by Salazar, to correct them. The two sides of the same problem have become two perspectives on solutions. In practice, when comparing the rankings and analyzing court decisions about free speech and free press, Portugal is the one that should be rightfully credited with doing the better job, even if it might not feel that way to Americans.

Works Cited

Anna Wilkowska-Landowska. “European Court Rules On Freedom of Expression in Portugal.” Rewire. N.p., 2009. Web.

Bilefsky, Dan. “Nostalgia for António de Oliveira Salazar Divides the Portuguese.” The New York Times. N.p., 2007. Web.

Crowley, Roger. “The First Global Empire. (Cover Story).” History Today Oct. 2015: 10–17. Web.

Garsd, Jasmine. “Saudade: An Untranslatable, Undeniably Potent Word.” Alt.Latino. N.p., 2015. Web.

“Global Freedom of Expression.” Columbia University. N.p., 2016. Web.

Griffen, Scott. Briefing: Criminal Defamation in Portugal. Vienna: N.p., 2015. Web.

“Expert: Portuguese Libel Laws Reflect ‘authoritarian Concept of Power.’” International Press Institute. N.p., 2014. Web.

“Intelligence Agency Spied on Newspaper Reporter.” Reporters Without Borders. N.p., n.d. Web.

“Journalist’s Statute.” N.p., n.d. Web.

Kaplan, Marion and Walter Opello. Portugal. 3 February 2017. .

Machado, Diamantino. The Structure of Portuguese Society : The Failure of Fascism. New York: Praeger, 1991. Print.

Monteiro, Nuno G. and Antonio Costa Pinto. Contemporary Portugal. Ed. Antonio Costa Pinto. New York: Columbia University Press, 2003.

Ortiz-Griffin, Julia, and William Griffin. Spain and Portugal Today. New York: Peter Lang, 2003. Print.

“Portugal.” World Press Freedom Index. N.p., 2016. Web.

Freedom House. N.p., 2015-2017. Web.

Royo, Sebastian. Portugal in the Twenty-First Century : Politics, Society, and Economics. Ed. Sebastian Royo. Lanham, MD: Lexington Books, 2011. Print.

Sellars, Kirsten. “Peter Benenson.” Web.

“The Government: Portuguese Democracy.” N.p., n.d. Web.

“The World Factbook.” Central Intelligence Agency. N.p., 2017. Print.

“Voting: Portuguese Democracy.” N.p., n.d. Web.

This essay was last updated on April 30, 2017.

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