Freedom of Expression
2. CHAPTER I - GENERAL REPORTS
A. Mandate and Competence of the Office of the Special Rapporteur for Freedom of Expression
1. The Office of the Special Rapporteur for Freedom of Expression is a permanent office, with functional autonomy and its own budget. The Inter-American Commission on Human Rights created the Office in exercise of its authority and competence. The Office operates within the legal framework of the Commission.[1]
2. The Inter-American Commission on Human Rights (IACHR) is an organ of the Organization of American States (OAS) whose principal function is to promote the observance and defense of human rights and to serve as an advisory body to the Organization on this subject. The Commission’s authority derives mainly from the American Convention on Human Rights, the American Declaration of the Rights and Duties of Man and the Charter of the Organization of American States. The Commission investigates and rules on complaints of human rights violations, conducts on-site visits, prepares draft treaties and declarations on human rights and prepares reports on the human rights situation in countries in the region.
3. The Commission has addressed issues pertaining to freedom of expression through its system of individual petitions, ruling on cases of censorship,[2] crimes against journalists and other direct or indirect restrictions on freedom of expression. It has spoken out about threats against journalists and restrictions placed on the media in its special reports, such as the Report on Contempt (Desacato) Laws.[3] The Commission has also studied the status of freedom of expression and information through on-site visits and in its general reports.[4] Lastly, the Commission has requested precautionary measures for urgent action to prevent irreparable harm to individuals.[5] In several cases, such measures were adopted to ensure full enjoyment of freedom of expression and to protect journalists.
4. At its 97th regular session in October 1997, and in exercise of its authority under the Convention and its own Rules of Procedure, the Commission decided, by unanimous vote, to create the Office of the Special Rapporteur for Freedom of Expression (hereinafter “Office of the Special Rapporteur”). It was created as a permanent unit that is functionally autonomous and has its own operating structure. In part, the Office of the Special Rapporteur was created in response to the recommendations of broad sectors of society in different States throughout the Hemisphere who shared a deep concern over the constant restriction of freedom of expression and information. Moreover, through its own observations regarding the situation of freedom of expression and information, the IACHR perceived serious threats and obstacles to the full and effective enjoyment of this right, which is so vital for the consolidation and advancement of the rule of law. At its 98th special session in March of 1998, the Commission determined what the general characteristics and functions of the Office of the Special Rapporteur would be and decided to establish a voluntary fund for economic assistance for the Office. In 1998, the Commission announced a public competition for the position of Special Rapporteur for Freedom of Expression in the Americas. After evaluating all the applications and interviewing several candidates, the Commission decided to appoint Argentine attorney Santiago Alejandro Canton as Special Rapporteur. He began his work on November 2, 1998. On March 22, after evaluating the applicants in a public competition, the Inter-American Commission on Human Rights (IACHR) appointed Mr. Eduardo A. Bertoni as Special Rapporteur for Freedom of Expression of the IACHR. Mr. Bertoni took office in May 2002, replacing Mr. Santiago Canton, who is currently the Executive Secretary of the IACHR.
5. In creating the Office of the Special Rapporteur, the Commission sought to stimulate awareness of the importance of the full observance of freedom of expression and information in the Hemisphere, given the fundamental role it plays in the consolidation and advancement of the democratic system and in ensuring that other human rights are protected and violations reported; to make specific recommendations on freedom of expression and information to Member States to promote adoption of progressive measures to strengthen this right; to prepare specialized reports and studies on the subject; and to respond quickly to petitions and other reports of violations of this right in an OAS member State.
6. In general terms, the Commission stated that the duties and mandates of the Office of the Special Rapporteur should include, among others: l. Prepare an annual report on the status of freedom of expression in the Americas and submit it to the Commission for consideration and inclusion in the IACHR’s Annual Report to the General Assembly of the OAS. 2. Prepare thematic reports. 3. Gather the information necessary to write the reports. 4. Organize promotional activities recommended by the Commission including, but not limited to, presenting papers at relevant conferences and seminars, educating government officials, professionals and students about the work of the Commission in this area and preparing other promotional materials. 5. Immediately notify the Commission about emergency situations that warrant the Commission’s request for precautionary measures or provisional measures that the Commission can request from the Inter-American Court, in order to prevent serious and irreparable harm to human rights. 6. Provide information to the Commission about the processing of individual cases pertaining to freedom of expression.
7. The Commission’s initiative in creating a permanent Office of the Special Rapporteur for Freedom of Expression enjoyed the full support of OAS Member States at the Second Summit of the Americas. At the Summit, the Heads of State and Government of the Americas recognized the fundamental role that freedom of expression and information plays in human rights and in a democratic system and expressed their satisfaction at the creation of this Office. In the Declaration of Santiago, adopted in April 1998, the Heads of State and Government expressly stated that:
We agree that a free press plays a fundamental role [in the area of human rights] and we reaffirm the importance of guaranteeing freedom of expression, information, and opinion. We commend the recent appointment of a Special Rapporteur for Freedom of Expression, within the framework of the Organization of American States.[6]
8. At the same Summit, the Heads of State and Government of the Americas also expressed their commitment to support the Office of the Special Rapporteur for Freedom of Expression. The Plan of Action from the Summit contains the following recommendation:
Strengthen the exercise of and respect for all human rights and the consolidation of democracy, including the fundamental right to freedom of expression and thought, through support for the activities of the Inter-American Commission on Human Rights in this field, in particular the recently created Special Rapporteur for Freedom of Expression.[7]
9. At the Third Summit of the Americas held in Quebec City, Canada, the Heads of State and Government ratified the mandate of the Special Rapporteur for Freedom of Expression and added the following:
[Our Governments will] Continue to support the work of the inter-American human rights system in the area of freedom of expression through the Special Rapporteur for Freedom of Expression of the IACHR, as well as proceed with the dissemination of comparative jurisprudence, and seek to ensure that national legislation on freedom of expression is consistent with international legal obligations.[8]
B. The Office of the Special Rapporteur's principal activities
10. Since taking office in November 1998, the Special Rapporteur has participated in numerous events aimed at publicizing the creation and objectives of the Office. Widespread awareness of the existence of the Office of the Special Rapporteur will contribute to its ability to successfully carry out its assigned tasks. Activities to promote and publicize the Office’s work mainly consisted of participating in international forums, coordinating activities with non-governmental organizations, advising states on proposing legislation related to freedom of expression and informing the public about the Office of the Special Rapporteur through the press. The main objectives of these activities were to increase the awareness among various sectors of society regarding the importance of the inter-American system for the protection of human rights, international standards governing freedom of expression, comparative jurisprudence on the subject and the importance of freedom of expression for the development of a democratic society.
11. The Office of the Special Rapporteur has become a strong proponent of legislative reform in the area of freedom of expression. Through its relationships with MemberStates and civil society organizations, the Office has launched a collaborative effort in support of initiatives to amend laws restricting the right to freedom of expression and to adopt legislation that will enhance people’s right to participate actively in the democratic process through access to information.
12. The Office of the Special Rapporteur employs various means to protect freedom of expression. In the course of its daily work, the Office: analyzes complaints of violations of freedom of expression received by the Commission and conveys to the Commission its opinions and recommendations with regard to opening cases; follows up on cases open before the Commission pertaining to violations of this right; requests that the Commission solicit precautionary measures from the Member States to protect the personal integrity of journalists and media correspondents who are facing threats or the risk of irreparable harm; makes recommendations to the Commission regarding hearings to be granted during regular sessions and participates with the Commission in hearings having to do with alleged violations of freedom of expression; and works with the parties to achieve friendly settlements within the framework of the Inter-American Commission on Human Rights.
13. Since its creation, the Office of the Special Rapporteur has carried out advisory studies and made recommendations to some Member States regarding the modification of existing laws and Articles that impinge on freedom of expression. The objective in these situations is to make domestic legislation compatible with international standards to more fully protect enjoyment of this right. While preparing its thematic and annual reports, the Office of the Special Rapporteur corresponds with Member States to request information on specific subjects related to freedom of expression.
14. The Office of the Special Rapporteur receives information through its informal hemispheric network on the status of freedom of expression in Member States. Information is submitted by various organizations monitoring this right, journalists and other sources. In cases considered to involve a serious violation of freedom of expression, the Office of the Special Rapporteur issues press releases about the information it has received, expresses its concern to the authorities, and makes recommendations for reinstating this right. In other cases, the Office of the Special Rapporteur directly contacts government authorities to obtain further information and/or to request that the government take measures to rectify the harm that has been inflicted. The Office of the Special Rapporteur has set up a database comprising numerous press agencies, freedom of expression and human rights monitoring organizations, attorneys specializing in the field and universities, among others, for the dissemination of releases and/or any other information considered relevant.
15. Due to the Office of the Special Rapporteur’s efforts to publicize its activities and mandate, diverse sectors of civil society have been able to approach the Office to protect their right to impart, disseminate and receive information.
1. Promotion and dissemination activities
16. Following is a description of the main promotion and dissemination activities carried out by the Rapporteurship in 2004.
17. On February 9 and 10, the Special Rapporteur traveled to New Haven, Connecticut to take part in the International Human Rights Program of the YaleLawSchool, where he gave a lecture on the mandate and activities of the Office of the Special Rapporteur.
18. From February 13-15, 2004, the Special Rapporteur presented a paper at the Annual Meeting of the KnightCenter for Journalism in the Americas at the University of Texas at Austin, where the meeting was held.
19. The Special Rapporteur was invited to take part in the mid year meeting and the 60th General Assembly of the Inter-American Press Association (IAPA). The former was held in Los Cabos, Mexico, from March 12-15, 2004, and the latter in La Antigua, Guatemala, from October 22-24, 2004. At this second meeting, the General Assembly of the IAPA reaffirmed its resolute support for the Executive Secretariat of the Inter-American Commission on Human Rights (IACHR) and for its Office of the Special Rapporteur for Freedom of Expression whose work must, according to the declaration, “be distinguished by autonomy and independence, and protected from all forms of interference or pressure, whether political or governmental.” On the same occasion, the IAPA adopted a further resolution to disseminate the jurisprudence of the Inter-American Court of Human Rights in the cases Canese v. Paraguay and Herrera Ulloa v. Costa Rica and to communicate with the states so that they adopt, within their domestic jurisdictions, the principles laid down in the judgments of the Inter-American Court and to insist on the advisability of decriminalizing offenses that may be committed while exercising freedom of expression.
20. On March 26, 2004, the Inter-American Dialogue held a meeting on Access to Information in the Americas: Key Principles, in Washington, D.C., which the Special Rapporteur attended.
21. The Brazilian Chamber of Deputies invited the Special Rapporteur for Freedom of Expression to present a paper as part of the international seminar Ethics on Television in Democratic Countries, which was held in Brasilia, Brazil, on April 13, 2004.
22. From April 20-24, 2004, a seminar on privacy was held in Santiago de Chile in which the Special Rapporteur presented a paper.
23. From April 26 to May 2, 2004, the Special Rapporteur traveled to Costa Rica in connection with the sixty-second Regular Session of the Inter-American Court of Human Rights, meeting in San Jose, at which two important cases concerning freedom of expression were heard. On April 28 and 29, the Court heard the oral summing up of the case Ricardo Canese v. Paraguay. On April 30, and May 1, the Court heard the oral summing up of the Herrera Ulloa v. Costa Rica case.
24. On May 10, 2004, the Special Rapporteur was a panelist at the Hemispheric Summit of National Congresses Press Freedom in the Americas, which was held in WashingtonD.C., co-sponsored by the AmericanUniversityWashingtonCollege of Law, the Law Library of the United States Congress and the Inter-American Press (IAPA).
25. During 2004, with backing from PRODECA (the Danish Program for Human Rights in Central America), the Office of the Rapporteur carried out a series of promotion and training activities relating to freedom of expression and access to information in Guatemala, Honduras, and El Salvador. From May 23-27, the Special Rapporteur went to Tegucigalpa where, among other things, he took part in a seminar with Costa Rican journalist and academic, Eduardo Ulibarri. From June 22-24, 2004, the Special Rapporteur did similar work in Guatemala, this time with Armando González, the editor of the Costa Rican newspaper, La Nación. On July 12 and 13, the Special Rapporteur took part in another course with Eduardo Ulibarri in San Salvador, with input from the Office of the Special Rapporteur’s attorney, Ms. Lisa Yagel. On this occassion, the Rapporteur was received by the President of El Salvador, Elías Antonio Saca González.
26. The Special Rapporteur attended the thirty-fourth regular session of the General Assembly of the Organization of American States (OAS), held in Quito, Ecuador, from June 6-8, at which resolution AG/RES.2057 (XXXIV-O/04), “Access to Public Information: Strengthening Democracy” was approved. During his time in Ecuador, the Rapporteur took part in a plenary panel on June 7 called Summitfor International Leadership in the Americas, 2004.
27. On June 9 and 10, the Office of the Special Rapporteur’s attorney, Ms. Lisa Yagel, traveled to Sweden at the invitation of the Swedish NGO Foundation for Human Rights, the Council for the Development of Social Science Research in Africa (CODESRIA), and the African Commission on Human and Peoples’ Rights, to take part in a conference: The African Commission on Human and Peoples’ Rights, and the Challenges it Faces in Promoting and Protecting Human Rights. Ms. Yagel spoke about Latin American experience, from the point of view of the Inter-American Commission, and of the Office of the Special Rapporteur for Freedom of Expression.
28. From July 17-24, the Special Rapporteur traveled to Mexico, D.F., to take part in the 120th Special Session of the Inter-American Commission on Human Rights.
29. On September 10, 2004, the Special Rapporteur traveled to New York to take part in a meeting organized by the Office of the Special Rapporteur and held at the headquarters of the Committee to Protect Journalists (CPJ); the organizations that took part were those that had played an active part in presenting writs of amici curiae in the case of Herrera Ulloa v. Costa Rica. The specific subject of the meeting was: The Judgment in the Herrera Ulloa–La Nación Case: Impact and Future. The participating organizations (CPJ, Article 19, the World Press Freedom Committee, Open Society Institute Justice Initiative, the College of Journalists of Costa Rica, the Center for Justice and International Law, and the Costa Rican newspaper La Nación) signed a declaration celebrating the judgment of the Inter-American Court and the concurr opinion of its President, Judge Sergio García Ramírez and stating that criminal defamation is a disproportionate and unnecessary response for protecting a reputation. They went on to state that the arena can provide sufficient remedies for those who claim to have been defamed, but there should be no responsibility unless the accused has behaved with disregard for the truth. The declaration also states that civil defamation should provide no special protection for public figures, that in cases of public interest the complainants should be required to show that the defamatory information is false, and that the compensation awarded in a civil court should be in proportion to the damage caused. The organizations committed themselves to work towards completely eliminating the laws of criminal defamation within the Hemisphere and to support and protect journalists who are prosecuted as a consequence of the existence of those laws.
30. On September 27 and 28, 2004, a special meeting was held in Antigua of the Association of Caribbean Mediaworkers (ACM), as part of which, on the second day, there was a module dealing with legal matters. The first Vice President of IACHR, Clare K. Roberts, made a presentation describing the inter-American human rights protection system, and the Office of the Special Rapporteur’s attorney, Ms Lisa Yagel, described the work of the Special Rapporteur and the standards applied by the inter-American system with regard to freedom of expression.
31. The Special Rapporteur was invited to attend the presentation of the Maria Moors Cabot awards made by the Columbia University School of Journalism, in New York, on October 5, 2004. The following day, he took part in an informal discussion on the state of press freedom in Latin America in the Americas program of the Committee to Protect Journalists (CPJ).
32. On November 1, 2004, the Special Rapporteur gave a lecture in the LawSchool of the ColumbiaUniversity in New York, sponsored by the Columbia Latin American Business Association, and the Columbia University Institute for Human Rights. The paper dealt with the subject: Freedom of Expression in the Americas: recent judgments by the Inter-American Court of Human Rights and the work of the Office of the Special Rapporteur for Freedom of Expression.
33. On November 15, in conjunction with the Woodrow Wilson International Center for Scholars, the Office of the Special Rapporteur organized a seminar on The Role of the Mass Media in Consolidating Democracy in WashingtonD.C. The seminar studied the role played by the media during the transition to democracy by Latin American countries and the new challenges facing them in their relations with the public and democratic governments.
34. On November 22, at the invitation of the Open Society Institute Justice Initiative, the Special Rapporteur traveled to London, England, to take part in an international meeting covering Access to Information: From “soft law” to “hard law”. International Meeting on Freedom of Information, Litigation, and Promotion Strategies.
35. On December 11, the Rapporteur was invited to give a keynote lecture on freedom of expression and the mass media in the framework of the Human Rights and Freedom of Expression Course of the Ibero-American University of Mexico. On December 10, he took part in a workshop with academics and personnel from the same university’s Human Rights Program and Department of Communications.
2. Presentations made to organs of the Organization of American States
36. On October 7, 2004, during a meeting of the Permanent Council of the OAS and of the Committee on Juridical and Political Affairs a dialogue was established between Member States regarding freedom of expression, with the participation of the Special Rapporteur, who thanked them for the financial backing constantly received by his Office to assist it in carrying out its work. He also stressed the fact that reports from the Office of the Special Rapporteur are considered and approved by the Inter-American Commission on Human Rights sitting in full session, which is a further indication of the support for its work. Furthermore, the Special Rapporteur mentioned that as part of his work, his Office maintains a constant dialogue with Member States and with organizations in civil society.
3. Publications
37. During 2004, the Office of the Special Rapporteur published a range of materials and books to promote freedom of expression in the Americas.
38. In April, while in Costa Rica for the hearings of the Inter-American Court of Human Rights, the Special Rapporteur, together with the Executive Director of the Inter-American Institute of Human Rights, Roberto Cuéllar, made an official presentation of their jointly-published book, Freedom of Expression in the Americas. The First Five Reports from the Office of the Special Rapporteur for Freedom of Expression, published under the auspices of PRODECA and of the Swedish International Development Cooperation Agency (SIDA).
39. Within the framework of the project to promote freedom of expression and access to information in Guatemala, Honduras and El Salvador, a leaflet was published containing Chapter VII of the Report of the Inter-American Commission on Human Rights: Justice and Social Inclusion: The Challenges Facing Democracy in Guatemala. This chapter describes the status of freedom of expression in Guatemala. This was published with backing from PRODECA and was produced with financial support from ASDI.
40. As part of the same promotion project in Central America and with financial support from PRODECA, a book was published on access to information, which includes the main contributions of the Office of the Special Rapporteur on theoretical aspects of the issue, as well as a CD-Rom containing essential information related to access to information and freedom of expression.
[1] See Articles 40 and 41 of the American Convention on Human Rights and Article 18 of the Statute of the Inter-American Commission on Human Rights.
[2] See Inter-American Court on Human Rights, “The Last Temptation of Christ” Case (Olmedo Bustos et al. v. Chile). Judgment of February 5, 2001, VII Article 13: Freedom of Expression; Francisco Martorell v. Chile in the Annual Report of the IACHR (1996).
[3] IACHR, Annual Report 1994, Report on the Compatibility of “desacato” laws with the American Convention on Human Rights, OEA/ser L/V/II.88, Doc. 9 Rev (1995).
[4] See, Report on the Situation of Human Rights in Mexico, OEA/Ser.L/V/II.100 Doc.7 rev., September 24, 1998 and Report on the Situation of Human Rights in Colombia, OEA/Ser.L/II. 102 Doc.9 rev.1, February 1996, and more recently, Justice and Social Inclusion: The Challenges facing Democracy in Guatemala, OAS/Ser.L/V/II.118 Doc.5 rev.1, December 29, 2003, and Report on the Situation of Human Rights in Venezuela, OAS/Ser.L/V.II.118 Doc.4 rev.1, October 24, 2003.
[5] Article 25(1) of the Statute of the Commission states that: “In serious and urgent cases, and whenever necessary according to the information available, the Commission may, on its own initiative or at the request of a party, request that the State concerned adopt precautionary measures to prevent irreparable harm to persons.”
[6]Santiago Declaration, Second Summit of the Americas, April 18-19, 1998, Santiago, Chile, in “Official Documents of the Process of the Summits from Miami to Santiago”, Volume I, Office of the Summit Follow-up, Organization of American States.
[7] Action Plan, Second Summit of the Americas, April 18-19, 1998, Santiago, Chile, in “Official Documents of the Process of the Summits from Miami to Santiago”, Volume I, Office of the Summit Follow-up, Organization of American States.
[8] Third Summit of the Americas, April 20-22, 2001, Quebec, Canada.