Portugal

 CountryType of Law 
 
 

Criminal Defamation

Defamation remains a criminal offence in Portugal (punishable with imprisonment).

The Criminal Code foresees the following offences:

Defamation (difamação, Art. 180): Alleging a fact or formulating a judgment (or reproducing such) about a third person that is offensive to that person’s honour or reputation. It is punished with a prison term of maximum six months or a fine of maximum 240 days. Per Art. 183, penalty raised by one-third when concerning the allegation of a particular fact that the offender knows to be untrue or committed with publicity (calúnia). Also per Art. 183, penalty is increased to a prison term of maximum two years or a fine not less than 120 days when committed through the media.

Insult (injúria, Art. 181): Alleging a fact or expressing offensive words directly to a person that is/are offensive to that person’s honour or reputation. Insult is punished with a prison term of maximum three months or a fine of up to 120 days. Per Art. 183, penalty raised by one-third when concerning the allegation of a particular fact that the offender knows to be untrue or committed with publicity (calúnia). Also per Art. 183, penalty is increased to a prison term of maximum two years or a fine not less than 120 days when committed through the media.

False public accusation (denúncia caluniosa, Art. 365): Publicly accusing or casting suspicion on a person of having committed a crime while knowing the accusation to be false. The penalty is imprisonment for up to three years or a fine. If the accusation is of a contravention (misdemeanour), the punishment is imprisonment of up to one year or a fine of up to 120 days. If the accusation results in the victim’s incarceration, the penalty is up to eight years in prison.

 

Criminal Defamation of Public Officials

Provisoins on the books.

Art. 184 of the Portuguese Criminal Code states that when defamation or insult is committed against a wide range of government and public figures in virtue of their function, the minimum and maximum punishments are raised by one-half. The list of figures covered includes members of Parliament, the Council of State, or the Ministry of the Republic; police and security service officers; public, civil, and military officials; judges, lawyers, witnesses, and jury members; ministers; and university professors.

 

Criminal Defamation of the Head of State

Provisoins on the books.

Art. 328 of the Portuguese Criminal Code punishes insult or defamation against the President of Portugal with three months in prison or a fine. If committed publicly or through the media, the punishment increases to a prison term of between six months to three years and a minimum fine of 60 days.

 

Criminal Defamation of the State and its Symbols

Provisoins on the books.

Art. 187 of the Portuguese Criminal Code punishes the assertion of false information “liable to offend the credibility or prestige” of an “institution, corporation, organism or service run by public authorities” with a prison term of maximum six months or a fine of maximum 240 days, subject to the defences of truth and legitimate interest and the provisions on aggravated defamation and insult.

Additionally, Art. 332 punishes insulting the State, the national flag or anthem, or the symbols of Portuguese sovereignty, or failing to give the State or its symbols “the respect they deserve” with a prison term of maximum two years or a fine up to 240 days.

 

Criminal Defamation of Foreign States and Symbols

Provisoins on the books.

Offending the honour of “protected persons” while such persons are in Portugal in the course of performing their official functions is a crime under Art. 322. The penalty is imprisonment for up to two years or a fine. The category “protected persons” includes foreign heads of state, heads of government and ministers of foreign affairs, and the families of these persons. The category also includes representatives or officials of foreign states or international organisations who enjoy special protection under international law, as well as the families of these persons.

In addition, under Art. 323, insulting the flag or official symbol of a foreign state or international organisation of which Portugal is a member is punished with a prison term of maximum one year or a fine of maximum 120 days.

 

Criminal Defamation of the Deceased

Provisoins on the books.

Seriously offending the dead is punishable under Art. 185 of the Portuguese Criminal Code with a prison term of maximum six months or a fine of maximum 240 days, subject to the defences of truth and legitimate interest and the aggravating circumstances of slander. The statute of limitations is 50 years.

 

Criminal Blasphemy

Provisoins on the books.

Offending a person in virtue of his religious belief, or denigrating an object of religious worship in a way that could disturb public order, or vilifying a religious practice is punishable with a prison term of maximum one year or a fine of maximum 120 days (Portuguese Criminal Code Arts. 251-252).

 

Criminal Procedure

According to the Portuguese Criminal Code, Prosecutions for insult or defamation (Arts. 180-183) can only occur at the behest of the offended party, except when the offended party is a public or government official or one of the institutions, corporations, or services named in Art. 187 (see under “Protection for the state, its institutions, or its symbols”).

 

Statistics on Application

The following data were provided upon request to the International Press Institute by the Portuguese Ministry of Justice.

The data below refer to criminal convictions by first-degree courts in the year 2013 (most recent year available)

  • For the offence of defamation (Art. 180), there were 177 convictions, resulting in 162 criminal fines.
  • For the offence of insult (Art. 181), there were 574 convictions, resulting in 3 unconditional prison sentences, 6 suspended prisons sentences, and 526 criminal fines.
  • For the offence of defamation or insult committed publicly or via the media (Art. 183, calúnia), there were 0 – 3 convictions*.
  • For the offence of aggravated defamation (Art. 184), there were 71 convictions, resulting in 4 suspended prison sentences and 59 criminal fines.
  • For the offence of aggravated insult (Art. 184), there were 353 convictions, resulting in 3 unconditional prison sentences, 18 suspended prison sentences, 6 prison sentences replaced by a fine, 8 prison sentences substituted by community service, 299 criminal fines, 6 criminal fine substituted by work, and 8 reprimands.
  • For the offence of an offence toward an institution, corporation, organism or service run by public authorities (Art. 187), there were 9 convictions, resulting in 8 criminal fines.
  • For the offence of seriously offending the dead (Art. 185), there were 3 convictions, for which no punishment is registered.
  • There were 0 convictions and 0-3 persons charged under Arts. 251 (religious insult), 322 (defamation of protected persons), 323 (insult of flag of foreign state or organisation), or 332 (insult to the Portuguese State and its symbols).

* According to the Ministry of Justice, when the number of persons charged or convicted under a certain article is fewer than 3, the data is protected by statistical secrecy laws.

Full data for the years 2010 – 2013 can be downloaded here (Excel, Portuguese).

 

Civil Defamation

There is no specific law regulating defamation, and the  states that civil liability follows the general rules of civil law (Art. 29). Article 26 of the Portuguese Constitution guarantees the right to a good name and repuation (ao bom nome e reputação), as well as to personal identity, the development of personality, and privacy of personal and family life. Article 483 of the Portuguese allows that individuals may demand compensation for the violation of their rights. In addition, Article 484 provides that “whosoever asserts or disseminates a fact that may damage the credit or good name of any person, singular or collective, is liable for the damage caused.

Damages

There are no caps on non-pecuniary damages for defamation in Portuguese law.

Statutory defences 

The Civil Code does not provide any specific defences for defamation.

 

Media Cases and Case Law

For detailed information on the application of criminal defamation laws in Portugal, see IPI’s June 2015 report on the subject.

In March 2010, the Coimbra Court of Appeal confirmed the criminal defamation conviction of two journalists working for the regional newspaper Jornal do Centro in Viseu. In 2002, the paper had published a news story and an opinion piece suggesting that a local court’s donation of used furniture to charity was marked by favoritism and a lack of transparency, noting that one private charity in particular had received nearly half of the pieces. The Coimbra Court ruled that “malicious insinuation” was not protected by freedom of expression and upheld criminal fines of €1890 and €2030. The defendants were further ordered to pay each of the plaintiffs – the secretary of the court and the private charity in question – €3500 in damages plus legal costs, which amounted to €3,480.48. The journalists appealed to the European Court of Human Rights, which in April 2014 in their favour. Ruling that the defendants had acted in good faith, the Court found that the news story in question was purely an “information article” that merely relayed true facts about the identities of those who had received the furniture pieces and transmitted the suspicions of other charities; and, furthermore, that the opinion piece was not only “based on facts, but also judicious as a civic contribution to a debate of general interest.” The Court also noted that the paper had dutifully sought and included reactions from the local court and the charity. Finally, the Court ruled that the punishment awarded by the Portuguese courts had been  “disproportionate”, and awarded the defendants €11,752.90 (the combined fine, damages, and legal costs) plus an additional €5,000 in legal costs related to the ECtHR case.

In Oct. 2010, the Lisbon Court of Appeal convicted on criminal defamation charges the director and deputy director of a Madeira-based satirical magazine, Garajau, over an article that scrutinised a purchase of some land by the vice-president of the Madeira Regional Government. The Court ruled that the defendants had not proved the truth of their assertions, and sentenced the pair to criminal fines of €2640 and €980 EUR, respectively. The defendants appealed to the European Court of Human Rights, which in Dec. 2013 in their favour. The ECtHR found that the article concerned a matter of public interest and that the magazine had acted in good faith in publishing it.

In Dec. 2012, the Lisbon Court of Appeal  Eduardo Welsh, then-director of Garajau, of criminal defamation after the magazine printed a cover drawing comparing the president of the Madeira Regional Government, Alberto João Jardim, with Adolf Hitler. According to news reports, the Court ruled that the majority of persons would understand the drawing as satire, and that although the image represented a “violent, exaggerated, and provocative attack”, it was directed at Jardim as a politician, not as a human being. The Court reportedly added: “Freedom of expression constitutes one of the fundamental essence of modern democratic societes. In such societies, public debate and freedom of expression should enjoy increased protection when relating to political questions or politicians themselves”.

In Feb. 2011, a lower court sentenced an anonymous blogger to 133 days in prison and a €40,000 fine for insulting a journalist working for the magazine Sábado, Fernando Esteves. According to reports, the blogger, later identified by police through his IP address as a doctor from Portgual’s Avis municipality, had taken issue with a story written by Esteves alleging instances of patient abuse by doctors in the country. The blogger then reportedly authored several anonymous posts on the website ‘Médico Explica Medicina a Intelectuais’ (“A doctor explains medicine to intellecutals”), in which he expressed disbelief that this “disgust in human form whom Luther would have called a donkey-pope” could have had privileged access to health records held by the government and claimed that, among other things, Esteves evidenced “recidivist hatred” of the medical profession. The judge in the case reportedly ruled that the blogger “could have acted differently” and “had not correctly exercised his rights”. Esteves after the verdict, “The judge preferred a very harsh sentence and I think she had the perfect notion of how to apply justice.[6] The blogosphere cannot be a place where one can say everything without consequences.” In Oct. 2011, the Lisbon Court of Appeal reportedly the blogger’s conviction. Esteves himself, in 2008, was ordered by the Portuguese Supreme Court to pay EUR 12,500 in damages to the director of an AIDS charity, Abraço, whom he accused of specific acts corruption. The Court said none of the accusations made by Esteves had been proven, and more than doubled the damages amount awarded by lower courts.

 

Recent Legal Changes

 

 

Notes and Acknowledgements

Information on defamation laws in Europe was collected by the International Press Institute (IPI) in collaboration with the School of Public Policy’s Center for Media, Data and Society at Central European University in Budapest and their partners at the SHARE Foundation in Belgrade. (Read more about our partners here.)

The information contained in this database is for informational and advocacy purposes only. If you are a journalist facing a defamation claim, you should seek legal advice from a qualified attorney. However, if you are unable to find such an attorney, IPI may be able to assist you in doing so. Please contact us at ipi[at]freemedia.at.

Information on Portugal was last updated in January 2017.

 

Lei de imprensa (Lei n.°2/99) (Portuguese), last accessed July 1 2014.
Código civil, DL n.º 47344/66, de 25 de Novembro (Portuguese).
Welsh and Silva Canha v. Portugal, No. 16812/11, ECHR 2013.
Tolentino de Nóbrega, “Jardim perde mais dois processos de difamação contra a imprensa”, Público, 17 Dec. 2012.
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