Freedom of Expression
Background and Interpretation of the Declaration of Principles
A. Background
1. In keeping with its mandate, the Office of the Special Rapporteur for Freedom of Expression worked throughout the year 2000 to draft the Declaration of Principles on Freedom of Expression.
2. The idea of drafting a Declaration on Freedom of Expression arose out of recognition of the need for a legal framework to regulate the effective protection of freedom of expression in the hemisphere that would incorporate the principal doctrines set forth in different international instruments.
3. Following widespread debate among different civil society organizations, and in support of the Office of the Special Rapporteur for Freedom of Expression, the Inter-American Commission on Human Rights approved the Declaration of Principles on Freedom of Expression at its 108th regular sessions in October 2000. This declaration constitutes a basic document for interpreting Article 13 of the American Convention on Human Rights. Its adoption not only serves as an acknowledgment of the importance of safeguarding freedom of expression in the Americas, but also incorporates international standards into the inter-American system to strengthen protection of this right.
4. The IACHR adopted the declaration recognizing that freedom of expression is essential for the consolidation and development of democracy, and convinced that any obstacle to the free discussion of ideas and opinions limits freedom of expression and the effective development of the democratic process.
5. In late July, the Inter-American Press Association (IAPA) invited the Special Rapporteur to attend a conference entitled Inter-American Declaration on Freedom of Expression, held in Miami. There, the Special Rapporteur participated in a panel on the Declaration of Chapultepec and presented the draft Declaration of Principles on Freedom of Expression to the following civil society organizations: the Carter Center, the Asociación Internacional de Radiodifusión (AIR), CEJIL (Center for Justice and International Law), Americas Watch, Asociación Periodistas, the World Press Freedom Committee and the Committee to Protect Journalists (CPJ) and jurists specializing in freedom of expression. The Declaration received considerable press coverage internationally, and was very well received by international organizations, many of which expressed their support for the document drafted by the Office of the Special Rapporteur.
6. In light of the importance of these principles in the development of respect for freedom of expression, an interpretation of the principles set forth in the Declaration is presented below.
B. Interpretation
Principle 1
Freedom of expression in all its forms and manifestations is a fundamental and inalienable right of all individuals. Additionally, it is an indispensable requirement for the very existence of a democratic society.
7. Respect for and protection of freedom of expression plays a fundamental role without which other elements for strengthening democracy and human rights cannot develop. The right to and respect for freedom of expression serves as an instrument for the free exchange of ideas, strengthens democratic processes and offers citizens an indispensable tool for informed participation. Moreover, through the mass media, citizens are empowered to participate in and/or exercise control over the conduct of public officials. As the Inter-American Court of Human Rights stated:
[F]reedom of expression is a cornerstone upon which the very existence of a democratic society rests. . . . It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed. Consequently, it can be said that a society that is not well informed is not a society that is truly free. Freedom of expression, therefore, is not just the right of individuals, but of society as a whole.[15]
8. It also should be emphasized that the declaration refers to freedom of expression “in all its forms and manifestations.” The right to freedom of expression is not limited to the media or to individuals who exercise this right through the media. The right to freedom of expression includes artistic, cultural, social, religious and political expressions, as well as any other type of expression.
Principle 2
Every person has the right to seek, receive and impart information and opinions freely under terms set forth in Article 13 of the American Convention on Human Rights. All people should be afforded equal opportunities to receive, seek and impart information by any means of communication without any discrimination for reasons of race, color, sex, language, religion, political or other opinions, national or social origin, economic status, birth or any other social condition.
9. The Inter-American Commission on Human Rights has stated that Member States must act to eliminate all measures that discriminate against people’s ability to participate fully in the political, economic, public and social life of their country. The American Convention on Human Rights enshrines the right of individuals to be free of discrimination as a pillar for the strengthening and functioning of democratic systems in the hemisphere.[16] Articles 33 and 44 of the OAS Charter stipulate:
The Member States agree that equality of opportunity, equitable distribution of wealth and income, and the full participation of their peoples in decisions relating to their own development are, among others, basic objectives of integral development […and foster] the incorporation and increasing participation of the marginal sectors of the population, in both rural and urban areas, in the economic, social, civic, cultural, and political life of the nation, in order to achieve the full integration of the national community, acceleration of the process of social mobility, and the consolidation of the democratic system.
10. The lack of equal participation makes it impossible for democratic, pluralistic societies to prosper, thereby exacerbating intolerance and discrimination. Including all sectors of society in communication, decision-making and development processes is essential to ensure that their needs, opinions and interests are taken into account in policy-making and decision-making. In this regard, the Inter-American Court pointed out that:
...a democratic society requires the guarantee of the widest possible circulation of news, ideas and opinions as well as the widest access to information by society as a whole. […]It is also in the interest of the democratic public order inherent in the American Convention that the right of each individual to express himself freely and that of society as a whole to receive information be scrupulously respected.[17]
11. The Special Rapporteur believes that it is precisely through active, peaceful participation in the democratic institutions of the State that the exercise of freedom of expression and information by all sectors of society is manifest and enables historically marginalized sectors to improve their conditions.
Principle 3
Every person has the right to access to information about himself or herself or his/her assets expeditiously and not onerously, whether it be contained in databases or public or private registries, and if necessary to update it, correct it and/or amend it.
12. This principle refers to the habeas data writ. The habeas data writ is based on three premises: 1) the right of every person to undisturbed privacy, 2) the right of every person to have access to information about him or herself contained in public or private databases and to modify, remove or correct such information due to its sensitive,[18] erroneous, biased, or discriminatory nature,[19] and 3) the right of every person to use the habeas data writ as a mechanism to ensure accountability.[20] The right to access to and control over personal information is essential in many areas of life, since the lack of legal mechanisms for the correction, updating or removal of information can have a direct impact on the right to privacy, honor, personal identity, property and accountability in information gathering.[21]
13. The habeas data writ acquires even greater significance with the emergence of new technologies. Widespread use of computers and the Internet has meant that the State and private sector can gain rapid access to a considerable amount of information about people. It is therefore necessary to ensure that there are specific channels for rapid access to information that can be used to modify any incorrect or outdated information contained in electronic databases. Moreover, the habeas data writ gives rise to certain obligations on the part of entities involved in processing data; they must: use the information for the express and specific purpose established; guarantee that data is protected from accidental or unauthorized access or manipulation; and allow the petitioner access to information when State or private sector entities might have obtained it in an irregular or illegal manner.
14. With respect to the accountability aspect of the habeas data writ, it should be stressed that in some countries in the hemisphere, this procedure is an important mechanism for monitoring the activities of State security or intelligence agencies. Through access to personal data it is possible to verify the legality of the methods employed by State agencies to collect personal information. Access to such information, moreover, enables the petitioner to ascertain the identity of those involved in illegal data collection, making it possible to punish those responsible.[22]
15. In order for the habeas data writ to function efficiently, administrative barriers to access to information should be removed, and user-friendly, simple and low-cost procedures for requesting information should be implemented. Otherwise, the result would be the formal adoption of a procedure that, in practice, does not facilitate access to information.
16. Moreover, it is not necessary to explain the reasons for requesting the information in order to use this procedure. The fact that personal data exists in public or private records is, in and of itself, sufficient grounds for exercising this right.[23]
Principle 4
Access to information held by the state is a fundamental right of every individual. States have the obligation to guarantee the full exercise of this right. This principle allows only exceptional limitations that must be previously established by law in case of a real and imminent danger that threatens national security in democratic societies.
17. Access to information held by the State is a pillar of democracy. As the Inter-American Court of Human Rights has pointed out, “a society that is not well informed is not a society that is truly free.”[24] Based on this principle, access to information held by the State is a fundamental right of individuals and States have the obligation to guarantee it. In terms of the specific objective of this right, it is understood that individuals have a right to request documentation and information held in public archives or processed by the State, in other words, information considered to be from a public source or official government documentation.
18. This right acquires even greater significance because it is closely related to the principle of transparency in administration and the public nature of government activities. The State is a vehicle for ensuring the common good. In this context, the owner of the information is the individual who has delegated the management of public affairs to his or her representatives.
The principle of transparency requires a service-oriented approach to Administration, by supplying whatever information has been previously, properly, and explicitly requested, as long as it is not temporarily exempted from the exercise of this right.[25]
19. Without the information that every person is entitled to, it is clearly impossible to exercise freedom of expression as an effective vehicle for civic participation or democratic oversight of government management. Such oversight is even more necessary given that cases of corruption implicating governments represent a major obstacle to strengthening democracies. Lack of effective oversight “gives rise to conduct that runs counter to the essence of a democratic State and opens a door to wrongdoing and unacceptable abuses.”[26] Ensuring access to information held by the State contributes to greater transparency of government activities and the attendant decrease in corruption in government management.
20. This principle, in turn, sets the limits that States must observe when they refuse to release information. Given the need for increased transparency of government activities as an essential element for strengthening democratic institutions in countries in the hemisphere, any limitations on access to records held by the State must be the exception. They should be clearly established by law, and only on grounds of a real and imminent danger to the national security of democratic societies. Therefore, every action to restrict access to information should be resolved on a case-by-case basis. According to the interpretation by the Inter-American Court of Human Rights, restrictions on freedom of expression and information “must be judged by reference to the legitimate needs of democratic societies and institutions” since freedom of expression and information is indispensable for any form of democratic government.[27] Therefore, the State must ensure that, in a situation of national emergency, denial of information held by the State shall be imposed only for the time period strictly necessary under the circumstances and should be changed once the emergency situation has passed.[28] The Special Rapporteur recommends that information considered classified should be reviewed by an independent legal entity capable of weighing the interest of protecting civil rights and freedoms against national security concerns.
Principle 5
Prior censorship, direct or indirect interference in or pressure exerted upon any expression, opinion or information transmitted through any means of oral, written, artistic, visual or electronic communication must be prohibited by law. Restrictions to the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the imposition of obstacles to the free flow of information violate the right to freedom of expression.
21. Prior censorship implies control and veto power over information before it has been disseminated, preventing the individual whose expression is censored, as well as society at large, from exercising their right to freedom of expression and information. Article 13 of the American Convention expressly prohibits prior censorship.[29] The duty to refrain from interfering with enjoyment of the right to access to information extends to the free circulation of information and ideas and the exhibition of artistic works that may not have the approval of the government authorities.[30]
22. Restrictions on freedom of expression are only permissible through the subsequent imposition of liability, which must be expressly established by law, where the ends sought to be achieved are legitimate, and the means for establishing liability are necessary to achieve those ends.[31]
23. Subsequent imposition of liability is regulated by Article 13 of the Convention and may only be applied in a limited manner as necessary to ensure respect for the rights and reputation of others. “Restrictions on the subsequent imposition of liability are contemplated as a guarantee of freedom of expression, to preclude certain individuals, groups, ideas or mediums for expression from being excluded, a priori, from public debate.”[32] The grounds for imposing liability must be necessary to achieve the legitimate end sought. Legitimacy is not an empty concept to be freely and arbitrarily defined by States. Rather, it falls under what legal doctrine refers to as indeterminate legal concepts. These are concepts whose content must be predictable based on the principles of reason and common sense and whose definitive interpretation permits only a fair solution.[33]
24. The right to guarantees of freedom of expression and thought is inextricably linked to the very existence of a democratic society; open and free discussion keeps society from becoming paralyzed and prepares it for the tensions and frictions that destroy civilizations.[34] A free society, now and in the future, is one that openly fosters vigorous public debate about itself.[35] In this context, the Inter-American Court has stated that abuses of freedom of expression can not be subject to preventive measures, but may be grounds for the subsequent imposition of liability of the person implicated. In this case, the subsequent imposition of liability must be carried out through the subsequent application of civil sanctions rather than prior censorship of the unpublished expression.[36]
25. The Inter-American Court of Human Rights has also emphasized that there are two aspects to freedom of expression: the right to express thoughts and ideas, and the right to receive them. Therefore, limitation of this right through arbitrary interference affects not only the individual right to express information and ideas, but also the right of the community as a whole to receive all types of information and opinions.[37] The Inter-American Court has indicated:
Prior censorship constitutes “an extreme violation of the right to freedom of expression by impeding the free circulation of information, ideas, opinions or news. Here the violation is extreme not only in that it violates the right of each individual to express himself, but also because it impairs the right of each person to be well informed, and thus affects one of the fundamental prerequisites of a democratic society.”[38]
26. The Inter-American Court, citing a decision of the European Court, has declared that protection of freedom of expression must encompass not only favorable information or ideas, but also those that “offend, shock or disturb” because “such are the demands of pluralism, tolerance and broadmindedness without which there is no democratic society.”[39]
27. According to this principle, it is unacceptable for economically powerful sectors or the State to exert economic or political pressure aimed at influencing or limiting the expression of individuals or the mass media. In this regard, the Inter-American Commission has stated that the use of authority to limit the expression of ideas lends itself to abuse, since stifling unpopular or critical ideas and opinions restricts the debate that is essential to the effective functioning of democratic institutions. Limitations on the free flow of ideas that do not incite lawless violence are incompatible with freedom of expression and with the basic principles that form the underpinnings of the pluralistic, democratic way of life in modern societies. [40]
Principle 6
Every person has the right to communicate his/her views by any means and in any form. Compulsory membership or the requirement of a university degree for the practice of journalism constitute unlawful restrictions of freedom of expression. Journalistic activities must be guided by ethical conduct, which should in no case be imposed by the State.
28. This principle establishes that every person is entitled to fully exercise freedom of expression without the necessity of degrees or membership in associations to legitimize this right. As stated earlier, the Inter-American Court has asserted that the exercise of freedom of expression requires that no one be arbitrarily limited or impeded in expressing his or her own thoughts, since such expression is not only the right of individuals, but also includes the collective right to receive any information whatsoever and to have access to the thoughts expressed by others. When the Convention proclaims that freedom of thought and expression includes the right to impart information and ideas through any medium, it underscores the indivisibility of expression and dissemination of thought. This means that restrictions imposed on dissemination represent, directly and in equal measure, a limitation on the right to express oneself freely.[41]
29. The Inter-American Court considered this problem in its consultative opinion on the compulsory membership of journalists in professional associations:
Within this context, journalism is the primary and principal manifestation of freedom of expression of thought. For that reason, because it is linked with freedom of expression, which is an inherent right of each individual, journalism cannot be equated to a profession that is merely granting a service to the public through the application of some knowledge or training acquired in a university or through those who are enrolled in a certain professional "colegio.”[42]
30. The Court also recognizes that journalism could not exist without the ability to exercise freedom of expression, so that there is a symbiotic relationship between the two.
[T]he professional journalist is not, nor can he be, anything but someone who has decided to exercise freedom of expression in a continuous, regular and paid manner. [Therefore,] compulsory licensing . . . would have the effect of permanently depriving those who are not members of the right to make full use of the rights that Article 13 of the Convention grants to each individual. Hence, it would violate the basic principles of a democratic public order on which the Convention itself is based.[43]
Lastly, the Inter-American Court has pointed out that:
The argument that licensing is a way to guarantee society objective and truthful information by means of codes of professional responsibility and ethics, is based on considerations of general welfare. But, in truth, as has been shown, general welfare requires the greatest possible amount of information, and it is the full exercise of the right of expression that benefits this general welfare. In principle, it would be a contradiction to invoke a restriction to freedom of expression as a means of guaranteeing it. Such an approach would ignore the primary and fundamental character of that right, which belongs to each and every individual as well as the public at large. A system that controls the right of expression in the name of a supposed guarantee of the correctness and truthfulness of the information that society receives can be the source of great abuse and, ultimately, violates the right to information that this same society has.[44]
Principle 7
Prior conditioning of expressions, such as truthfulness, timeliness or impartiality is incompatible with the right to freedom of expression recognized in international instruments.
31. Proper interpretation of international standards, particularly Article 13 of the Convention, leads us to conclude that the right to information encompasses all information, including that which we might term “erroneous,” “untimely,” or “incomplete.” Therefore, any prior conditionality to qualify information would limit the amount of information protected by the right to freedom of expression. For example, the right to truthful information would not protect information that, by contrast to truth, we would label erroneous. Therefore, this right would not protect any information that could be considered erroneous, untimely, or incomplete.
32. Requiring the truth or impartiality of information is based on the premise that there is one indisputable truth. In this regard, it is important to distinguish between subjects related to concrete facts, and that may be proven factually, and value judgements. In the latter case, it is impossible to speak of the veracity of the information. Requiring truthfulness could lead to virtually automatic censorship of all information that cannot be proved. This would eliminate, for example, virtually all public debate based primarily on ideas and opinions, which are inherently subjective. Even in cases of information regarding concrete events that may be factually proven, it is still impossible to demand veracity since, unquestionably, there may be a considerable number of markedly different interpretations of a single fact or event.
33. Moreover, even assuming that it is possible to determine the truth about everything, the debate and exchange of ideas clearly is the best method to uncover this truth and to strengthen democratic systems based on plurality of ideas, opinions and information. Prior imposition of a requirement to report only the truth expressly precludes the possibility of engaging in the debate necessary to reach it. The prospect of penalties for reporting on a subject that free debate later shows to be incorrect creates the potential that informants will engage in self-censorship to avoid penalties, with the attendant harm to citizens who are unable to benefit from the exchange of ideas. The doctrine of truthful information represents a regression for freedom of expression and information in the hemisphere in that the free flow of information will be limited by the prior classification of such information as “truthful” or “erroneous,” in contradiction with the broad conception of this right in the Inter-American system.
34. In this regard, the Inter-American Court has stated that both aspects of freedom of expression (individual and collective) must be guaranteed simultaneously. The conditioning of the information that society can receive through communications media impedes the flow of timely information, diminishing a society’s capacity for informed participation. One cannot legitimately rely on the right of a society to be honestly informed in order to put in place a regime of prior censorship for the alleged purpose of eliminating information deemed to be untrue in the eyes of the censor.[45]
35. Unquestionably, the right to freedom of expression also protects information that we have termed “erroneous.” In any event, in accordance with international standards and the most highly developed jurisprudence, only information found to be produced with “actual malice” is punishable.[46] Even in such cases, the sanction must be carried out through the subsequent imposition of liability rather than the establishment of prior conditions.
Principle 8
Every social communicator has the right to keep his/her source of information, notes, personal and professional archives confidential.
36. This principle provides for the right of every social communicator to refuse to disclose sources of information and research findings to private entities, third parties, or government or legal authorities. Professional confidentiality is considered the social communicator’s right not to reveal information or documentation that has been received in confidence or in the course of research. It should be emphasized that this right does not constitute a duty, as the social communicator does not have the obligation to protect the confidentiality of information sources, except for reasons of professional conduct and ethics.[47]
37. A principal rationale underlying the right to confidentiality is that, in the scope of his or her work to supply the public with information necessary to satisfy the right to inform, the journalist is providing an important public service when he or she collects and disseminates information that would not be made known without protecting the confidentiality of the sources. Professional confidentiality consists of “observing discretion about the identity of the source to ensure the right to information; it has to do with granting legal guarantees to ensure anonymity and preventing possible reprisals that may result from having disclosed certain information.”[48] “Journalists, and others who obtain information from confidential sources with a view to disseminating it in the public interest, have a right not to disclose the identity of their confidential sources.”[49] Confidentiality, therefore, is an essential element of the work of the journalist and of the role society has conferred upon journalists to report on matters of public interest.[50]
Principle 9
The murder, kidnapping, intimidation of and/or threats to social communicators, as well as the material destruction of communications media violate the fundamental rights of individuals and strongly restrict freedom of expression. It is the duty of the state to prevent and investigate such occurrences, to punish their perpetrators and to ensure that victims receive due compensation.
38. The Commission has asserted that attacks on journalists are intended to silence them, and therefore also constitute violations of society’s right to have free access to information. An independent and critical press is fundamental to ensuring respect for other liberties that form part of a democratic system of government and the rule of law.[51] In several Latin American democracies, public institutions responsible for oversight of the conduct and functions of the authorities are weak. The press in these countries has become the primary instrument for oversight and dissemination of information about government activities. In many cases, the press has informed public opinion about illegal, abusive or corrupt actions by State agents. As a consequence, the press has been targeted for attacks and persecution.
39. The murder, abduction, intimidation and threatening of journalists, as well as the destruction of press materials, are carried out with two concrete aims. The first is to eliminate journalists investigating attacks, abuses, irregularities or illegal acts of any kind committed by public officials, organizations or private individuals in general. This is done to make sure that the investigations are not completed or never receive the public debate they deserve, or simply as a form of reprisal for the investigation itself. Secondly, such acts are used as an instrument of intimidation that sends an unmistakable message to all members of civil society engaged in investigating attacks, abuses, irregularities, or illicit acts of any kind. This practice seeks to silence the press in its watchdog role, or make it an accomplice to individuals or institutions engaged in abusive or illegal actions. Ultimately, the goal is to keep society from being informed about such occurrences, at any cost.
40. Under the American Convention on Human Rights and other international law instruments, States have the obligation to effectively investigate the events surrounding the murder of journalists and to punish the perpetrators. The Inter-American Court has maintained that the investigation:
Should make sense and be undertaken by the State as its inherent legal duty. It should not be merely a matter of private interest that relies on the initiative of victims and families to file suit or on private sources to submit evidence; rather, the authorities must effectively seek out the truth.[52]
41. The Inter-American Commission on Human Rights has asserted that a State’s failure to carry out an effective and thorough investigation of the murder of a journalist and to apply criminal sanctions against the material and intellectual authors is particularly serious in terms of the impact this has on society. This type of crime has an intimidating effect not just on journalists, but on all citizens, because it inspires fear of reporting attacks, abuses and illegal activities of any kind. This effect can only be avoided by concerted government action to punish those responsible for murdering journalists. In this way, States can send a strong, direct message to society that there will be no tolerance for those who engage in such a grave violation of the right to freedom of expression.[53]
Principle 10
Privacy laws should not inhibit or restrict investigation and dissemination of information of public interest. The protection of a person’s reputation should only be guaranteed through civil sanctions in those cases in which the person offended is a public official, a public person or a private person who has voluntarily become involved in matters of public interest. In addition, in these cases, it must be proven that in disseminating the news, the social communicator had the specific intent to inflict harm, was fully aware that false news was disseminated, or acted with gross negligence in efforts to determine the truth or falsity of such news.
42. This principle essentially refers to the need to revise laws created to protect people’s reputations (commonly known as libel and slander laws). The kind of political debate encouraged by freedom of expression and information inevitably will generate some speech critical of, or even offensive to, those who hold public posts or are intimately involved in public policymaking. Rather than protecting people’s reputations, libel or slander laws are often used to attack, or rather to stifle, speech considered critical of public administration.
43. The Inter-American Commission has stated that the criminalization of speech directed toward public officials or private individuals voluntarily engaged in matters of public interest is a disproportionate punishment compared to the important role that freedom of expression and information plays in a democratic system. “Such sanctions clearly cannot be justified, particularly in light of the adequacy of non-criminal sanctions in redressing any harm to individuals’ reputations.”[54] In a representative democracy, public officials, or anyone involved in matters of public interest, must be held accountable to the men and women they represent. The individuals who make up a democratic society confer upon their representatives the task of managing matters of interest to society as a whole. However, society retains ownership of these matters and must enjoy a broad right, with the fewest restrictions possible, to exercise control over the management of public affairs by their representatives.[55] In this regard, the IACHR stated:
A law that targets speech that is considered critical of public administration by virtue of the individual who is the object of the expression, strikes at the very essence and content of freedom of expression.[56]
44. Thorough and effective oversight of public management as a tool to guarantee the existence of a democratic society requires a different type of protection for those responsible for public affairs than that accorded an individual not involved in matters of public interest. In this regard, the Inter-American Commission has stated that the application of laws protecting the honor of public officials acting in an official capacity unjustifiably grants them a right to protection that other members of society lack. This distinction indirectly inverts the fundamental principle of a democratic system in which the government is subject to controls, including public scrutiny, to prevent or check abuses of its coercive power.[57]
Moreover, the fact that public officials and public figures generally have easy access to the mass media allowing them to respond to attacks on their honor and personal reputation, is also a reason to provide for a lower level of legal protection of their honor.[58]
45. The State fulfills its obligation to protect the rights of others by establishing statutory protection against intentional attacks on honor and reputation through civil procedures, and by enacting legislation to ensure the right to rectification or reply. In this way, the State safeguards the private life of all individuals, without exercising its coercive power abusively to repress the individual freedom to form and express an opinion.[59]
46. This principle also establishes the standard of “actual malice” as a legal doctrine used to protect the honor of public officials or public figures. In practice, this standard means that only civil sanctions are applied in cases where false information has been produced with “actual malice,”[60] in other words, produced with the express intention to cause harm, with full knowledge that the information was false or with manifest negligence in the determination of the truth or falsity of the information. The burden of proof is on those who believe they have been affected by the false or inaccurate information to demonstrate that the author of the news item acted with malice.
47. There should be no liability when the information giving rise to a lawsuit is a value judgement rather than a factual assertion. A prerequisite for establishing liability is the ability to demonstrate that the information was false or to prove that the respondent knowingly published a statement that was false or very likely false. If the information is a value judgement, it is impossible to prove its truth or falsity, since it represents a totally subjective opinion that cannot be proved.
48. The Commission has stated that this is particularly the case in the public arena where criticism is often based on value judgments rather than purely fact-based statements.[61] Since value judgments cannot be proven, it may be impossible to demonstrate the veracity of such declarations. Thus, a rule that compels someone who criticizes public officials to guarantee the veracity of the assertions has a chilling effect on criticism of government conduct. Such rules raise the specter that someone who criticizes the government in good faith may be penalized for his or her criticism. [62]
49. Additionally, according to the doctrine of faithful reporting, the faithful reproduction of information does not give rise to responsibility, even in cases in which the information is not correct and could cause harm to the honor of a person. This doctrine arises from the necessity of freedom of expression and information for the existence of a democratic society. In a democratic society, debate must be fluid and open. The publication of information provided by third parties should not be restricted by the threat of responsibility simply for repeating what has been stated by another person. This constitutes an unnecessary restriction that limits the right of individuals to be informed.
Principle 11
Public officials are subject to greater scrutiny by society. Laws that penalize offensive expressions directed at public officials, generally known as “desacato laws,” restrict freedom of expression and the right to information.
50. As previously stated, the full enjoyment of freedom of expression is one of the principal mechanisms available to society to exercise democratic oversight of those responsible for matters of public interest. The IACHR clearly pronounced on the incompatibility of desacato [contempt] laws with the American Convention:
The use of desacato laws to protect the honor of public functionaries acting in their official capacities unjustifiably grants a right to protection to public officials that is not available to other members of society. This distinction inverts the fundamental principle in a democratic system that holds the Government subject to controls, such as public scrutiny, in order to preclude or control abuse of its coercive powers. If we consider that public functionaries acting in their official capacity are the Government for all intents and purposes, then it must be the individual and the public’s right to criticize and scrutinize the officials’ actions and attitudes in so far as they relate to public office.
. . .
Desacato laws restrict freedom of expression because they carry with them the threat of imprisonment and/or fines for those who insult or offend a public official. In this regard, the European Court has stated that although the subsequent penalties of a fine and revocation of a published article did not prevent the petitioner from expressing himself, "they nonetheless amounted to a censure, which would be likely to discourage him from making criticisms of that kind again in the future." The fear of criminal sanctions necessarily discourages people from voicing their opinions on issues of public concern particularly when the legislation fails to distinguish between facts and value judgments. Political criticism often involves value judgements.
. . .
Moreover, the Commission notes that, contrary to the rationale underlying desacato laws, in democratic societies political and public figures must be more, not less, open to public scrutiny and criticism. The open and wide-ranging public debate, which is at the core of democratic society necessarily involves those persons who are involved in devising and implementing public policy. Since these persons are at the center of public debate, they knowingly expose themselves to public scrutiny and thus must display a greater degree of tolerance for criticism. [63]
51. The Inter-American Commission has stated that “the open and wide-ranging public debate, which is at the core of democratic society, necessarily involves those persons who are involved in devising and implementing public policy...” and added that “since these persons are at the center of public debate, they knowingly expose themselves to public scrutiny and thus must display a greater degree of tolerance for criticism.”
52. In this context, a crucial distinction must be made between private persons and public persons. The protection accorded public officials under these desacato laws directly contravenes these principles. Such laws completely invert the parameters of a democratic society in which public officials must be subject to greater scrutiny by society. To safeguard democratic principles, these laws must be repealed in countries where they still exist. Because of the way in which they are structured and used, these laws constitute bastions of authoritarianism left over from past eras and must be done away with.
Principle 12
Monopolies or oligopolies in the ownership and control of the communication media must be subject to anti-trust laws, as they conspire against democracy by limiting the plurality and diversity which ensure the full exercise of people’s right to information. In no case should such laws apply exclusively to the media. The concession of radio and television broadcast frequencies should take into account democratic criteria that provide equal opportunity of access for all individuals.
53. The existence of public or private monopolies constitutes a serious obstacle for the diffusion of individuals’ own thoughts, as well as for access to the opinions of others. Both the Inter-American Court and the Inter-American Commission on Human Rights have stated that freedom of expression requires that the communications media be open to all without discrimination or, more precisely, that no individual or group be excluded from access to such media. They also require certain conditions so that the media can truly be an instrument for freedom of expression. It is the mass media that makes the exercise of freedom of expression a reality and therefore the media must adapt itself to the requirements of this right.[64]
54. In this context, it is imperative to guarantee the right of every person to equal opportunity to receive, seek and impart information through any communications medium, without discrimination for any reason. Monopolies or oligopolies in the mass communications media represent a serious obstacle to the right of all people to express themselves and to receive information. Control of communications media in the form of monopolies or oligopolies seriously affects the requisite of pluralism. When the sources of information are seriously reduced in quantity, as is the case with oligopolies, or there exists only one source, as with monopolies, the possibility increases that the information diffused has not had the benefit of being challenged by information from other sources, limiting in fact the right to information of all society.
55. In modern society, mass communications media, such as television, radio and the press, have an undeniable power in the cultural, political, religious etc. formation of society’s inhabitants. If these media are controlled by a small number of individuals, or by a single one, this in fact creates a society in which a small number of persons exercise control over information and, directly or indirectly, over the opinions received by the rest of society. This lack of pluralism in information is a serious obstacle to the functioning of democracy. Democracy requires the confrontation ideas, debate and discussion. When this debate does not exist or is weakened due to the fact that sources of information are limited, this directly contravenes the principal pillar of democratic functioning.
According to the Inter-American Commission on Human Rights:
The free circulation of ideas and news is inconceivable without multiple sources of information and respect for the communications media. It is not enough to guarantee the right to found or direct organs of public opinion. Journalists and, in general, all those who work professionally in the media, must be able to carry out their work with sufficient protection of liberty and independence as required by this profession.[65]
Principle 13
The exercise of power and the use of public funds by the state, the granting of customs duty privileges, the arbitrary and discriminatory placement of official advertising and government loans, the concession of radio and television broadcast frequencies, among others, with the intent to put pressure on and punish or reward and provide privileges to social communicators and communications media because of the opinions they express threaten freedom of expression, and must be explicitly prohibited by law. The means of communication have the right to carry out their role in an independent manner. Direct or indirect pressures exerted upon journalists or other social communicators to stifle the dissemination of information are incompatible with freedom of expression.
56. The State must refrain from using its power and public funds in order to punish, reward, or favor social communicators or the mass media based on their approach to coverage. The State’s primary role is to facilitate the most wide-ranging, pluralistic and free debate of ideas. Any interference that restricts the free flow of ideas must be expressly prohibited by law. Direct or indirect pressures aimed at stifling the reporting activities of social correspondents are incompatible with freedom of expression.
57. The use of the State’s power to impose restrictive criteria can be a covert means of censoring information that is considered critical of authorities. In analyzing the reach of freedom of expression in the context of the rights protected in the Convention, the Inter-American Court recognized that freedom of expression is indivisible from the right of diffusion of thought and information. In this sense, the right has both an individual and a social dimension. The Court stated:
freedom of expression is not complete in the theoretical recognition of the right to speak or write, but when it also includes, inseparably, the right to use any appropriate means to diffuse information and to ensure that it reaches the widest possible audience. . . Likewise, it is fundamental that journalists . . . enjoy the protection and the independence necessary to carry out their functions fully, since it is they who keep society informed, an indispensable condition so that society may enjoy broad liberty[66]
58. The Special Rapporteur also emphasizes that the imposition of direct or indirect pressure aimed at silencing the informative work of social communicators impedes the full functioning of democracy, inasmuch as the consolidation of democracy in the hemisphere is intimately related to the free exchange of ideas, information and opinions among individuals.
[15] IACHR, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85 Series A, No. 5, paragraph 70.
[16] See American Convention on Human Rights, Chapter I, General Obligations: Article 1: Obligation to Respect Rights and Chapter II on Civil and Political Rights, Article 13: Freedom of Expression.
[17] IACHR, Advisory Opinion OC-5/85 Series A, No. 5, Supra note 15, paragraph 69.
[18] “Sensitive information” is understood as anything having to do with the private life of the person.
[19] See Alicia Pierini, Valentín Lorences y María Inés Tornabene. Habeas Data: Derecho a la Intimidad. Editorial Universidad, Buenos Aires, 1999, p. 16.
[20] See Víctor Abramovich y Christian Courtis. El acceso a la información como derecho. CELS, 2000, p. 7.
[21] See Supreme Court of Justice of Argentina. Secretaria de Investigación de Derecho Comparado, Tomo 1 (1998) p. 121.
[22] Abramovich y Courtis, supra note 20, p. 9.
[23] See Miguel Angel Ekmekdjian. Derecho a la Información: Reforma Constitucional y Libertad de Expresión. Nuevos Aspectos. Ediciones Depalma (1996) p.115.
[24] IACHR, OC 5/85, Series A Nº 5, supra note 15, para. 70.
[25] See Pomed Sanchez, Luis Alberto. El Derecho de Acceso de los Ciudadanos a los Archivos y Registros Administrativos. Editorial M.A.P., Madrid, 1989, p.109.
[26] See Pierini y Otros, supra note 19, p. 31.
[27] IACHR, OC-5/85 supra note 15, para.70.
[28] American Convention on Human Rights, Chapter IV, Article 27 which contemplates the State’s obligations under emergency circumstances.
[29] The only exception to the prohibition of prior censorship is for regulating access to public entertainments for the moral protection of childhood and adolescence. See Article 13, Paragraph 4.
[30] ICHR. “The Last Temptation of Christ” supra note 2, para. 61c.
[31] IACHR, OC-5/85, supra note 15, para. 59.
[32] Court, “The Last Temptation of Christ” supra note 2, para. 61e.
[33] Eduardo Garcia de Enterría. Hacia una Nueva Justicia Administrativa. Madrid, 1996.
[34] Denis v. U.S., 341 U.S. 494, 584 (1951).
[35] Report Nº 11/96, Case 11.230, Chile, Francisco Martorell, May 3, 1996.
[36] IACHR, OC-5/85, supra note 15, para. 39.
[37] Id., para. 30-32.
[38] Id., para. 54.
[39] Castells v. Spain, Judgment of April 23, 1992, Series A, N1 236, para. 20.
[40] IACHR, Report on the Compatibility of desacato Laws with the American Convention on Human Rights. Supra note 3.
[41] IACHR, OC-5-85, para. 30-31.
[42] Id., para. 71.
[43] Id., para. 74-76.
[44] Id., para. 77.
[45] IACHR, OC-5-85, para 33.
[46] The doctrine of “actual malice” refers to the fact that that “the constitutional guarantees require . . . a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice”—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times v. Sullivan, 376 U.S. 255 (1961).
[47] See Felipe Fierro Alvídez. El derecho y la libertad de expresión en México, debates y reflexiones. Revista Latina de Comunicación Social, La Laguna. Dec., 2000, #36, p.5.
[48] See Marc Carrillo. La clausura de conciencia y el secreto profesional de los periodistas. Civitas y Centro de Investigación, Barcelona. 1993, p. 170.
[49] Article XIX. Defining Defamation, Principles of Freedom of Expression and Protection of Reputation. Principle 6: Protection of Sources.
[50] Fierro Alvídez, supra note 47, p. 6.
[51] See IACHR, Report on the Situation of Human Rights in Mexico, OEA/Ser.L/V/II.100, Doc 7 rev.1, September 24, 1998, para. 649, p.142. and Case #11,739 Report Nº 5/99, Hector Felix Miranda .
[52] Inter-American Court of Human Rights, Velázquez Rodríguez Case, Judgment of July 29, 1988, para. 177.
[53] Inter-American Commission on Human Rights. Report Nº 50/90, Case 11.739 (Mexico) OAS/Ser/L/V/II. Doc. 57, April 13, 1999.
[54] Article XIX. Supra note 49, Principle 4 Comment.
[55] See IACHR, Supra note 3.
[56] IACHR, Annual Report, OAS/Ser.L/V/II.88.Doc.9.rev. February 17, 1995, p.218. See ECHR, Linger v. Austria, Series A, Nº103, 1986; ECHR, Castells v. Spain, Series A, No. 236, 1992.
[57] Id.
[58] See Bill on the decriminalization of the crimes of defamation and libel contained in the Civil and Criminal Codes of the Argentine Nation (Proyecto de ley sobre despenalización a los delitos de injuria y calumnia contenidas en los Códigos Civil y Penal de la Nación Argentina), currently pending ratification in the Senate and Chamber of Deputies of the Argentine Nation. It should be pointed out that this bill was drafted in the context of the Argentine Government’s commitment to arrive at a friendly settlement with the Journalists’ Association, entered into at the hearing on October 1, 1999, in IACHR case 12.128.
[59] See Article XIX. Supra note 49, Principle 2 Comment.
[60] See supra note 43.
[61] Value judgments also include humorous and satirical speech. See Bill on the decriminalization of the crimes of defamation and libel contained in the Civil and Criminal Codes of the Argentine Nation, in The Annual Report of the Office of the Special Rapporteur for Freedom of Expression 1999, Annexes p. 79.
[62] IACHR, OAS/ser L/V/II.88, Doc. 9 rev (1995), supra note 3.
[63] IACHR, OAS/ser L/V/II.88, Doc. 9 rev (1995), supra note 3.
[64] Id.
[65] OAS, Complaint Before the Inter-American Court of Human Rights. Baruch Ivcher Bronstein vs. Republic of Peru, Case 11.762, p. 27.
[66] Inter-American Court of Human Rights. Ivcher Bronstein Case, Judgment of February 6, 2001, para. 147-150. In the individual case of Ivcher Bronstein, the Court indicated that “the resolution that revoked the citizenship of Mr. Ivcher constituted an indirect means of restricting his freedom of expression, as well as that of the journalists who work and investigate for the program Contrapunto on Peruvian television Channel 2.” See para. 162. Additionally, the Court concluded that “By separating Mr. Ivcher from the control of Channel 2, and excluding the journalists from the program Contrapunto, the State not only restricted the right of these individuals to circulate news, ideas and opinions, but also affected the right of all Peruvians to receive information, limiting their right to exercise political opinions and develop themselves fully in a democratic society.” See para. 163.