OAS » IACHR » Special Rapporteurship for Freedom of Expression » 4. CHAPTER III - JURISPRUDENCE

Freedom of Expression

4. CHAPTER III - JURISPRUDENCE

A.         Summary of the recent jurisprudence on freedom of expression of the United Nations Human Rights Committee[1]

1.         Introduction

1.         The following sections summarize the recent jurisprudence on freedom of expression provided by the United Nations Human Rights Committee that is most applicable to freedom of expression issues in the Americas.  The inclusion of these sections in this chapter responds to an attempt by the Special Rapporteur for Freedom of Expression to encourage comparative law case studies in compliance with the mandate of the Heads of State and Government conferred at the Third Summit of the Americas held in Quebec, Canada, in April 2001.  During the Summit, the Heads of State and Government ratified the mandate of the Special Rapporteur for Freedom of Expression, and further decided that the States will:

[…] 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.[2]

2.         The Special Rapporteur for Freedom of Expression regards the Committee's jurisprudence on the right to freedom of expression as a valuable source that can shed light on the interpretation of this right in the Inter-American system, and serve as a useful tool for legal practitioners and interested persons.

3.         Two key declarations that comprise the International Bill of Rights pertain to the freedom of expression: the Universal Declaration of Human Rights (hereinafter the “UDHR”) and the International Covenant on Civil and Political Rights (hereinafter the “ICCPR”).  The United Nations General Assembly adopted the UDHR in 1948.[3] The negotiating states adopted the ICCPR and opened it for signature, ratification and accession on December 16, 1966.[4]  The ICCPR entered into force on March 23, 1976,[5] and has been ratified by 152 countries.[6] 

4.         The American Convention on Human Rights (hereinafter the “American Convention”), the UDHR, and the ICCPR each have specific provisions regarding the right to freedom of expression.  These are delineated in Article 13 of the American Convention,[7] Article 19 of the UDHR, and Articles 19 and 20 of the ICCPR[8].  However, the format of the Articles differs greatly: while Article 13 of the American Convention contains a specific list of exceptions to the general principle established in the first paragraph of the Article, its counterpart in the UDHR is formulated in very general terms.  The first two subparts of Article 19 of the ICCPR are identical to those found in the American Convention, but the American Convention, in the subsequent subparts, provides greater elaboration than the ICCPR on permissible restrictions.  Article 20 of the ICCPR echoes the sentiments of Article 13(5) of the American Convention by placing a prohibition on “[a]ny propaganda for war” and on “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.”[9]  Moreover, the Articles have a very different reach, as Article 13 of the American Convention creates a virtually complete ban on prior censorship that is absent in both the UDHR and the ICCPR.[10]

5.         The higher regard in which the American Convention holds the right to freedom of expression as compared to both the UDHR and the ICCPR makes it imperative that the rules derived from the jurisprudence of the United Nations Human Rights Committee be understood as minimum standards required by the right to freedom of expression, but never as a limitation on the enjoyment of greater protection of freedom of expression.  This approach is consistent with the view adopted by the Inter-American Court of Human Rights on the simultaneous applicability of international treaties.  In this regard, the Court affirmed, following the rule of interpretation set out in subparagraph (b) of Article 29 of the American Convention, that:

[. . .] if in the same situation both the American Convention and another treaty are applicable, the rule most favorable to the individual must prevail.  Considering that the Convention itself establishes that its provisions should not have a restrictive effect on the enjoyment of the rights guaranteed in other international instruments, it makes even less sense to invoke restrictions contained in those other international instruments, but which are not found in the Convention, to limit the exercise of the rights and freedoms that the latter recognizes.[11]

2.         Cases under the International Covenant on Civil and Political Rights

6.         Almost all cases concerning freedom of expression under the United Nations Human Rights Committee’s jurisdiction are introduced under Article 19 of the ICCPR.  Article 19 provides for the right to freedom of expression in the following way:

1.             Everyone shall have the right to hold opinions without interference.

 2.             Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

 3.             The exercise of the rights provided for in paragraph 2 of this Article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

 (a)           For respect of the rights or reputations of others;

 

(b)           For the protection of national security or of public order (ordre public), or of public health or morals.[12]

 7.         The following section refers to cases recently decided by the United Nations Human Rights Committee (hereinafter “the Committee”) on subjects related to the right to freedom of expression.  The selection of the issues in these cases corresponds to the importance of their proper understanding in tackling the difficulties faced by the countries in the Americas at the current stage of development of the right to freedom of expression.

 8.         The subjects treated in this section are loosely grouped in the following categories, according to the basis of the Committee’s analysis of the complaint: (a) criminal defamation; (b) access to judicial information; (c) censorship; (d) access to forum and media for public demonstration or dissent; and (e) political participation.  It should be noted that a number of these cases could fall into multiple categories because of their factual circumstances. 

 9.         The cases portrayed are only a sampling of the over fifty cases available on the subjects treated in the jurisprudence of the Committee.[13]  The cases below have been selected to best illustrate the Committee's interpretation of the right to freedom of expression as laid out by Article 19 of the ICCPR.  In these recent cases, the Committee analyzes whether there has been a violation of the right to freedom of expression by evaluating whether the restrictions imposed come within the ambit of Article 19.

 a.         Criminal defamation    

i.          Kankanamge v. Sri Lanka (2004)

 10.       In Kankanamge v. Sri Lanka,[14] the Committee held that to keep indictments for criminal defamation pending for a practicing journalist for a period of several years left the journalist in a situation where he was prone to uncertainty and susceptible to intimidation (a “chilling effect,” in the Committee’s words), thereby violating his right to freedom of expression under Article 19. 

 11.       The petitioner was a journalist and the editor of the newspaper “Ravaya.”  From 1993 to 2000, the petitioner claimed that he had been indicted several times for allegedly having criminally defamed ministers and high-level officials of the police and other governmental departments in Articles and reports published in his newspaper.  He claimed that these indictments were designed to harass him, having been transmitted from the Attorney General to Sri Lanka’s High Court without the obligatory assessment of facts and exercise of discretion required under Sri Lankan statutory law.  The petitioner claimed that the motivation of harassment was particularly evident because of the following facts, among others: (1) the offense is normally tried in the Magistrate Court (a lower court); (2) the Attorney General’s approval is required for filing defamation proceedings in the Magistrate Court; (3) the charge is amenable to settlement when tried before the Magistrate Courts, but not before the High Court.

 12.       At the time of his initial petition, December 17, 1999, three criminal indictments were pending against the petitioner before the High Court.  These indictments were all served on the petitioner during the period between June 1996 and September 1997.  Despite the fact that the indictments were all withdrawn as of June 25, 2004, the Committee decided to rule on the case during its July, 2004 session.  Previously, many other indictments against the petitioner were either withdrawn or discontinued.

 13.       The Committee considered the indictments against the petitioner to all be related to Articles in which he allegedly defamed high State party officials and to be directly attributable to the exercise of his profession of journalist.  Thus, the Committee ruled, the indictments were directly attributable to the exercise of the petitioner’s right to freedom of expression.  Given the nature of the petitioner’s profession and the circumstances of the case (especially the fact that previous indictments had been lodged, then withdrawn or discontinued), the Committee concluded that to keep pending the indictments for the criminal offense of defamation for a period of several years left the petitioner in a situation where he was prone to uncertainty and susceptible to intimidation, despite his efforts to have the indictments terminated.  This situation, the Committee concluded, had a “chilling effect” which unduly restricted the author’s exercise of his right to freedom of expression and violated the State party’s obligations under Article 19 of the ICCPR.

 ii.          Paraga v. Croatia (2001)

 14.       In Paraga v. Croatia,[15] the Committee held that the mere institution of criminal slander proceedings against an opponent of the political party in power for referring to the current President as a “dictator” was insufficient for the Committee to find a violation of Article 19.  While a statute that criminalized the dissemination of false information could lead to restrictions that go beyond those permissible under Article 19, paragraph 3 of the ICCPR, sufficiently specific information must be provided by the petitioner for the Committee to be able to make that determination.

 15.       In this case, the petitioner was a long-time human rights activist who had been persecuted under the former communist government of Yugoslavia.  In 1990, he re-organized the Croatian Party of Rights (“HSP”), which had been banned by the government since 1929.  He became the party’s president. 

 16.       Mr. Paraga’s petition detailed a long history of repeated physical attacks and bombings that targeted him, police detentions, and criminal charges that were allegedly politically motivated.  A number of events in particular led to his claim under Article 19 of the ICCPR, only some of which were reviewable by the Committee due to the date of entry into force of the Optional Protocol for Croatia.  On April 21, 1992, the petitioner was summoned for having labeled the President of Croatia as a “dictator.”  The court procedures on criminal slander charges (for “dissemination of false information”) brought against him arising out of this incident were only terminated seven years later, after he had filed his petition with the Committee.  On October 7, 1997, the County Court of Zagreb began criminal proceedings against the petitioner for “spreading false information.”  The petitioner and the Croatian government gave conflicting accounts of whether these proceedings had yet been terminated when the case was considered by the Committee. 

 17.       The criminal statute which prohibited the dissemination of false information (Article 191 of the Penal Code) stated that the act could have been “committed by a person who transmits of spreads news or information known by the person to be false, and likely to disturb a greater number of citizens, and also intended to cause such disturbance.” 

 18.       In examining the Article 19 claims based on the slander proceedings, the Committee concluded that while the State had not refuted that the proceedings were instituted against the petitioner because he had referred to the President of Croatia as a dictator, it was unable to conclude that Croatia had indeed violated Article 19 of the ICCPR.  The Committee “observe[d]” that the Penal Code provision under which the proceedings were instituted could, in some circumstances, lead to restrictions that go beyond those permissible under Article 19, paragraph 3 of the ICCPR.  Nevertheless, the petitioner failed to provide enough sufficiently specific information for the Committee to conclude that the mere institution of proceedings itself violated Article 19.  In making its decision, the Committee took note of the fact that the charges had later been dismissed.  

 b.         Access to judicial information

 i.          Lovell v. Australia (2004)

 19.       In Lovell v. Australia,[16] the Committee held that a lawyer who represented a litigant in a domestic civil lawsuit and who had publicly distributed allegedly confidential information that he had acquired as part of the proceeding’s discovery process and was fined by the Australian courts as a result did not have his right to freedom of expression violated under Article 19.

 20.       An Australian labor union retained the petitioner, also an Australian, when it became involved in legal proceedings against a steel producer called Hamersly Iron.  Hamersly commenced the proceedings against the union and a number of its officials seeking injunctions and compensatory damages on a number of grounds.  As part of the trial process, Hamersly made available for discovery by the union and its officials all internal documents that were relevant to the case and for which Hamersly could not claim privilege.  Both Lovell and the union obtained and inspected the documents.  Hamersley alleged that the petitioner and the union revealed some of the contents of the documents publicly via radio interview, in newspaper Articles, and in a series of briefings prepared for union members.  By doing so, Hamersly alleged, the petitioner had committed contempt of court, since such actions were prohibited by the implied rules of discovery. 

 21.       The petitioner (and the union) were convicted of two counts of contempt of court.  The first count was for the misuse of the documents, since the rules of procedure provided that their contents could not be communicated other than for the purposes of the litigation for which they were discovered.  The second contempt count was for interference with the due administration of justice.  The interference charge was based on the notion that by disclosing the documents’ contents, the petitioner: (1) intentionally placed improper pressure on Hamersly in the main proceedings, (2) invited public prejudgment of the issues, and (3) created the tendency for witnesses to be frightened off.  

 22.       To defend himself, the petitioner argued that once the documents were referred to in open court, they had become part of the public domain and there were no longer any limitations on their use.  He also argued that Hamersly waived its right to claim confidentiality when it responded to accusations made by the petitioner based on information contained in the documents.  He claimed that his use of the information was consistent with his right to political communication.  The petitioner lost and was fined AUD$40,000. 

 23.       In defending the claim, the state of Australia claimed that the law of contempt is a permissible restriction to the right of freedom of expression under Article 19 of the ICCPR because it ensures that the interference with an individual’s private rights brought about by the discovery process is balanced by the requirement to only use the discovered documents for the purposes for which they were turned over. 

 24.       In its opinion, the Committee held that the petitioner was exercising his right to free expression when he transmitted the information read in open court through different media.  The Committee referred to Article 19, paragraph 2, which includes “the freedom to speak, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media,” as the basis for its conclusion.

 25.       The Committee noted that for any restriction on free expression to be justified under Article 19, paragraph 3 of the ICCPR, it must: (1) be provided for by law; (2) address one of the aims enumerated in paragraph 3(a) and 3(b) of paragraph 19; and (3) be necessary to achieve the legitimate purpose.  Here, the circumstances met these criteria.  As to (1) and (2), contempt of court is an institution provided by law that restricts free expression to achieve the goals of confidentiality of a party or the integrity of the court or public order.  As to (3), the documents at issue were never officially adduced into evidence, and so their contents were never included in the published record of the case.  The fact that only the litigating parties and their attorneys had access to the contents at issue is significant and shows the role of confidentiality interests in the Australian court’s decision.  The Human Rights Committee thus concluded that there was no violation of the ICCPR by Australia.

 c.         Censorship

 i.          Laptsevich v. Belarus (2000)

 26.       In Laptsevich v. Belarus,[17] the Committee held that a statute that required publishers of literature that would be produced in large print runs to obtain and present information for their publications which could only be procured from the administrative authorities restricted the publisher’s freedom to impart information in violation of Article 19, paragraph 2 of the ICCPR. 

 27.       The petitioner, who was the chairman of the local branch of an opposition political party, was approached by police on March 23, 1997, while distributing leaflets devoted to the anniversary of the proclamation of independence of the People’s Republic of Belarus in the city center in Mogilev, Belarus.  The officers confiscated all copies of the leaflet that were still in the petitioner’s possession and charged him with a violation of Article 172(3) of the Code of Administrative Offenses for disseminating leaflets not bearing the required publication data.  The petitioner was fined 390,000 rubles.

 28.       The statute under which the petitioner was sanctioned was set out in Article 26 of the Act on the Press and Other Mass Media.  It required every edition of a “printed periodical publication” to contain: (1) the name of the publication; (2) its founder(s); (3) the full name of the editor or his deputy; (4) the serial number of the edition and date of issue and, for newspapers, the date when sent to press; (5) the price per issue or the indication “price not stipulated” or “free”; (6) the print run; (7) the index number (for editions distributed by mail delivery services; (8) the publisher’s and printer’s full addresses; and (9) the registration number.

 29.       Article 1 of the same Act stated that “printed periodical publications” means:

 newspapers, journals, brochures, almanacs, bulletins, and other publications with unvarying titles and serial numbers, appearing not less than once per year . . .

 The regulations established by this Act for printed periodical publications shall apply to the periodical distribution in print runs of 300 copies and over of texts drafted with the help of computers and the information collected in their data bank and bases, and to other mass information media whose output is distributed in the form of printed communications, posters, handbills, and other material.

 30.       Under Article 172(3) of the Administrative Offenses Code, it was an administrative offense to disseminate printed material which either was not produced in accordance with the established procedure, did not indicate the required publication data or contained matter detrimental to the State, public order, or the rights and lawful interests of private individuals. 

 31.       The Human Rights Committee concluded that Article 26 of the Press Act, because it required publishers to obtain information for their publications which could only be procured from the administrative authorities, restricted the author’s freedom to impart information, thereby violating Article 19, paragraph 2 of the ICCPR.  While the Committee refrained from reevaluating the findings of the Belorussian courts as to whether Article 172(3) of the Administrative Offenses Code applied to the petitioner, it stated that even if the sanctions imposed were permitted under the domestic law, the state must show that they were necessary for one of the legitimate aims set out in Article 19, paragraph 3.  The Committee concluded that the sanctions imposed for failure to comply with the Press Act could not be deemed necessary for the protection of public order or for respect of the rights or reputations of others, and so the State had violated Article 19 of the ICCPR. 

 ii.          Hak Chul Shin v. Republic of Korea (2004)

 32.       In Hak Chul Shin v. Republic of Korea,[18] the Committee held any State party that seeks to demonstrate that a form of expression protected by Article 19, poses a threat to one of the enumerated purposes listed in Article 19, paragraph 3 must show in a “specific fashion” the precise nature of the threat. 

33.       In this case, the Committee found in favor of a South Korean artist, Hak-Chul Shin, whose painting had been confiscated by the government of the Republic of Korea.  The Committee held that the painting was protected by Article 19, paragraph 2, since it was an idea imparted “in the form of art.”  In the judgment of the Committee, even though the artist’s arrest and the confiscation of his painting occurred through application of the law, none of the acceptable justifications for restriction of the right to freedom of expression under Article 19, paragraph 3, including protection of national security or public order, applied in this case.     

34.       The painting at issue portrayed the Korean peninsula divided into northern and southern sections.  The southern section portrayed a farmer planting rice behind a bull which plowed a field.  In the painting, the bull was trampling on the movie character E.T., Rambo, foreign tobacco, Coca-Cola, Japanese samurai, Japanese singing and dancing girls, then-U.S. President Ronald Reagan, then-Japanese Prime Minister Nakasone, the then-President of the Republic of Korea, Doo Hwan Chun, tanks and nuclear weapons, and men that were interpreted by the Republic of Korea’s Supreme Court as symbolizing the “landed class and the comprador capitalist class.”  The Supreme Court interpreted these representations, among others, as symbolizing foreign power, including American and Japanese imperialism.  The painting showed the farmer sweeping the symbols into the sea.  Behind him, he sets up wire entanglements (taken by the Supreme Court to represent the 38^th parallel’s boundary between the Republic of Korea and the Democratic People’s Republic of Korea (DPRK)).  

 35.       The upper portion of the painting portrayed the northern section of the Korean peninsula.  This included a peach in a forest of leafy trees where pigeons roost “affectionately.”  In another portion of the forest is drawn Bak-Doo-San, known as the “Sacred Mountain of Rebellion” that is located in the DPRK.  The mountainside contains flowers in full bloom and below it are a lake and a straw-roofed house.  By the house, farmers are setting up a feast and sitting or dancing, and children are playing around them. 

 36.       After completing the painting, Shin distributed it in various formats and it became widely publicized.  In August 1989, the Security Command of the NationalPoliceAcademy arrested Shin on a warrant.  He was indicted for an alleged breach of Article 7 of the National Security Law, because the painting allegedly constituted an “enemy-benefiting expression.”  Article 7 of the National Security Law provides, inter alia:

 Any person who has benefited the anti-State organization by way of praising, encouraging or siding with or through other means the activities of an anti-State organization, its member or a person who had been under instruction from such organization, shall be punished by imprisonment for not more than seven years. … Any person who has, for the purpose of committing the actions stipulated in paragraphs 1 through 4 of this Article, produced, imported, duplicated, processed, transported, disseminated, sold or acquired documents, drawings or any other similar means of expression shall be punished by the same penalty as set forth in each paragraph.

 37.       After Shin was acquitted by a trial court and the acquittal was upheld, the Supreme Court of the Republic of Korea accepted the case.  The Supreme Court held that a re-trial should occur, as Article 7 is breached when “the expression in question is actively and aggressively threatening the security and country or the free and democratic order.”  Upon re-trial, Shin was convicted and sentenced to probation.  The Court ordered his painting confiscated and destroyed. 

 38.       Shin argued that his painting was meant simply to portray his dream of peaceful unification and democratization of his country based on his experience of rural life during childhood.  During the trial, the government characterized the painting as depicting opposition to a corrupt, militaristic south and urging structural change towards a peaceful, farming-based life in the north.  It thus labeled the painting an incitement to “communization” of the Republic of Korea.  At trial, both sides presented individuals they represented as art experts to lend credence to their interpretations of the painting’s significance. 

39.       The artist argued that the Supreme Court’s finding that the painting was “active and aggressive” failed to meet the objective standard articulated by Article 19(2) of the ICCPR.  Under paragraph 2, in order to justify infringement of the right to freedom of expression, his conviction must have been “necessary” for purposes of national security. 

 40.       The Committee concluded that its jurisprudence illustrated that any State party must demonstrate in “specific fashion” the precise nature of the threat the artist’s conduct posed to any of the enumerated purposes of Article 19, paragraph 3.  Because the government of the Republic of Korea did not even attempt to make an individualized justification for the seizure of the painting and the painter’s arrest, the Committee found a violation of the painter’s right to freedom of expression. 

 d.         Access to public fora and media for demonstration or dissent

 i.          Zundel v. Canada (2003)

 41.       In Zundel v. Canada,[19] the Committee held that although the right to freedom of expression, as enshrined in Article 19, paragraph 2, extends to the choice of medium, it does not amount to an “unfettered right” of any individual or group to hold public press conferences upon the grounds of official government buildings or property or to a right to have one’s views broadcast to others from such a forum. 

 42.       The petitioner in this case was a German citizen born in 1939 who had resided in Canada since 1958.  The petitioner was a self-described publisher and activist who sought to defend Germans against what he considered to be false atrocity allegations concerning German conduct during World War II.  The petitioner maintained an American-based internet website known as the “Zundelsite.”  One of the Articles posted on that site, as an example, was entitled “Did Six Million Jews Really Die?”  The Article disputed that six million Jews were killed during the Holocaust. 

43.       In May, 1997, after a Holocaust survivor had lodged a complaint with the Canadian Human Rights Commission against the petitioner’s website, the Canadian Human Rights Tribunal initiated an inquiry into the complaint.  During the hearings on the complaint, the Tribunal refused to permit the author to raise a defense of truth by proving that the statements on the “Zundelsite” were true.  The Tribunal considered that it was not appropriate to debate the truth or falsity of the statements on the website because this would only add delay, cost, and offense to those who were allegedly victimized by the statements.[20] 

 44.       Shortly after the Tribunal’s hearings were concluded, the petitioner booked the Charles Lynch Press Conference Room in the Centre Block of the Parliament buildings through the Canadian Parliamentary Press Gallery, a non-governmental and non-profit organization to which the day-to-day administration of the Canadian Parliament’s press facilities has been delegated.  The petitioner claimed that he met the criteria for booking the conference room.

 45.       In a press release announcing the press conference that he planned to hold there, dated June 3, 1998, the petitioner stated that he would discuss the interim ruling of the Human Rights Tribunal refusing to admit the defense of truth.  In part, the press release read:

The New Inquisition in Toronto! Government tries to grab control of the Internet!

 Ernst Zundel is told by the Canadian Human Rights Commission and its tribunal:

 -           Truth is not a defense

 -           Intent is not a defense

 -           That the statements communicated are true is irrelevant!

 46.       It appeared that part of the petitioner’s motivation in holding the press conference was to have it broadcast on the national cable television channel that typically covered press conferences taking place in the conference room in question. 

 47.       Following the press release, several members of Parliament were contacted by individuals protesting against the author’s use of the Conference Room.  The Press Gallery refused to cancel the booking of the room, so the House of Commons passed the following unanimous motion:  “That this House order that Ernst Zundel be denied admittance to the precincts of the House of Commons during and for the remainder of the present session.”  As a result, the petitioner was banned from holding his press conference in the Charles Lynch Press Conference Room.  Instead, he held an informal press conference outside the Parliament buildings on the sidewalk. 

 48.       The crux of the State’s argument was that the petitioner’s right to freedom of expression had not been violated because he was still able to express his views outside of the parliamentary precincts.  The State also argued that the restriction was legally mandated under Article 4 of the International Convention of the Elimination of All Forms of Racial Discrimination, which requires states party to take measures to suppress the dissemination of ideas based on racial discrimination and hatred.  The State also argued that exclusion from Parliament also served the purpose of protecting public order and public morals under Article 19, paragraph 3 of the ICCPR. 

 49.       In considering the claim, the Human Rights Committee determined that it was incompatible with Article 19 of the ICCPR and therefore inadmissible ratione materiae under Article 3 of the Optional Protocol.  The Committee reasoned that although the right to freedom of expression, as enshrined in Article 19, paragraph 2, extends to the choice of medium, it does not amount to an unfettered right of any individual or group to hold press conferences within the Parliamentary precincts, or to have such press conferences broadcast by others.  The Committee noted that the petitioner, after having been banned from the press conference room, remained at liberty to hold a press conference elsewhere.  Thus, the Committee concluded that the petitioner’s claim fell outside the scope of the right to freedom of expression as protected in Article 19, paragraph 2.[21] 

 ii.          Kivenmaa v. Finland (1994)

 50.       In Kivenmaa v. Finland,[22] the Committee decided that although Article 19 authorizes a restriction by the law of freedom of expression in certain circumstances, when the state party has not referred to a law that allows this freedom to be restricted for a reason permissible within the meaning of Article 19, a violation of Article 19 will be established. While the petitioner’s raising of a banner was an exercise of freedom of expression, the State party failed to invoke a law that was based on a restriction permitted under the ICCPR.[23]

 51.       On September 3, 1987, on the occasion of a visit of a foreign head of state and his meeting with the president of Finland, Kivenmaa and about 25 members of her political organization gathered amid a larger crowd across from the presidential palace where the leaders were meeting. They distributed leaflets without interference but, when they raised a banner critical of the visitor's human rights record, the police immediately took it down and charged Kivenmaa with holding a public meeting without prior notification in violation of the Act on Public Meetings. Although she argued that she did not organize a public meeting, but only demonstrated her criticism of the alleged human rights allegations, she was subsequently convicted and fined for this offence on the basis that Kivenmaa's group could be regarded as a public meeting because its behavior distinguished it from the crowd. Her conviction was upheld on appeal and the Supreme Court subsequently denied leave to appeal.

52.       The Committee stated that a requirement to notify the police of an intended demonstration in a public place six hours before its commencement may be compatible with the ICCPR. However, in the instant case, there was a gathering of only a handful of people; this could not be regarded as a demonstration. The Committee implicitly accepted that the right to express opinions may be exercised by the raising of a banner. However, the State party failed to refer to a law allowing the restriction of freedom of expression and failed to show how the restriction was necessary to safeguard the rights and national imperatives set forth in Article 19(2)(a) and (b).  Consequently, the Committee held that, as the raising of the banner was an exercise of the right to freedom of expression and no law was invoked allowing its restriction in the present case, there was a violation of Article 19.

 iii.         Ross v. Canada (2000)

 53.       In Ross v. Canada,[24] the Committee held that generally lawful domestic restrictions pertaining to freedom of expression, although vaguely constructed, will not automatically be assumed to be a violation of Article 19.  The protection of the “rights and reputations of others” discussed in Article 19, paragraph 3 need not relate to the rights of a single, identifiable person.  Rather, the rights or reputations of others may be related to other persons or to a community as a whole.  Additionally, the exercise of the right to freedom of expression carries with it special duties, particularly for school teachers.  The influence exerted by school teachers may justify restraints in order to ensure that legitimacy is not given by the school system to the expression of discriminatory views. 

 54.       Ross v. Canada involved an educator whose writings and public speaking engagements gained him local notoriety for views that were considered by some to be intolerant of Jews and Judaism.  He was transferred to a non-classroom position as a result of complaints by students and threatened with loss of his job if he were to write or speak publicly against Judaism or its followers.  The Supreme Court of Canada eventually ruled on his case, holding that the punishment was constitutional and did not abridge his constitutional guarantee to freedom of expression. 

 55.       In its decision, the Committee noted the vague criteria that were used to remove the author from his teaching position.  The Committee noted the thorough domestic legal proceedings in which the petitioner had been actively involved and concluded that it was not for the Committee to re-evaluate the findings of the Canadian Supreme Court on the vagueness issue.  The Committee also noted that the legitimate aim of the State was the protection of the rights and reputations of other, observing that the rights of a single, identifiable person need not be invoked for this permissible justification for a restriction on freedom of expression under Article 19.  The restrictions on the petitioner thus had the legitimate aim of protecting the Jewish community’s right to an education in the public school system free from bias, prejudice, and intolerance, the Committee concluded.  Finally, in considering the necessity component of the restriction, the Committee noted that teachers have special duties and responsibilities in the exercise of their rights within the school system, especially when young students are involved.  Therefore, the removal of the author from his teaching position was necessary, as a causal link had been shown between the “poisoned environment” for Jewish children in the School District and the expressions of the petitioner.  For these reasons, the restriction did not constitute a violation of the petitioner’s right to freedom of expression.

 iv.         Howell v. Jamaica (2003)

 56.       In Howell v. Jamaica,[25] the Committee focused on the practical effect of an order for the removal of all writing instruments from inmates in a Jamaican prison, holding that because the petitioner could write letters soon after the order was issued, the Committee could not hold that there was a violation of Article 19. 

 57.       The petitioner, Floyd Howell, was a Jamaican citizen detained on death row in a Jamaican prison at the time of the submission of his petition.  He was subsequently released on February 27, 1998.  The petitioner alleged that on March 5, 1997, while a prisoner on death row in the prison, he was subject to a severe beating by two groups of 20 and 60 prison guards with wooden instruments.  He claimed that he, along with other prisoners, was beaten because of an escape attempt initiated by four other inmates.  The petitioner alleged that on March 20, 1997, the superintendent issued a “standing order” that prohibited all inmates from keeping either papers or writing implements in their cells.  Nevertheless, the petitioner was able to write a letter to his counsel dated March 21, in which he recounted the events of the previous weeks.  He was also able to write correspondence to a friend that was dated April 17, 1997 and August 15, 1997.  The petitioner claimed that the standing order of the superintendent depriving him of his writing implements was in violation of his right “to seek, receive, and impart information . . . in writing.”

 58.       In considering the petition, the Committee focused on the practical effect of the alleged “standing order” of the prison superintendent.  It concluded that because the petitioner was able to communicate with his counsel within one day of the issuance of the order and later with both counsel and a friend, the Committee could not conclude that the petitioner’s rights under Article 19(2) had been violated.     

 e.         Political participation

i.          Yong Joo Kang v. Republic of Korea (2003)

 59.       In Yong Joo Kang v. Republic of Korea,[26] the Committee held that the application of an “ideology conversion system” to a prisoner convicted of espionage for the distribution of publicly available information violated the petitioner’s right to freedom of expression. 

60.       The petitioner, along with other acquaintances, was an opponent of the State party’s military regime.  In 1984, he distributed pamphlets criticizing the regime and the use of security forces to harass him and others.  In January, March, and May 1985, he distributed dissident publications covering issues of a political, economic, social, and historical nature. 

 61.       On July 1, 1985, the petitioner was arrested without warrant by the Agency for National Security Planning (ANSP).  He was held for 36 days incommunicado and alleged that he suffered torture and mistreatment at the hands of his interrogators.  During that time he confessed to being a spy for North Korea, and contended that his confession was coerced by torture.  He was later tried for alleged violations of the National Security Law and convicted to life imprisonment, with the Seoul Criminal District Court relying upon his confessions.  In its holding, the court found that the petitioner had “become a member of an anti-State organization” and that dialogue and meeting with other regime critics constituted the crime of “praising, encouraging, or siding with the anti-State organization,” and the crime of “meeting with a member of the anti-State organization.”  Finally, the court also concluded that the distribution of publications amounted to “espionage.”

 62.       The petitioner’s domestic appeals were dismissed at both the intermediate and Supreme Court levels.  The petitioner was finally released in 1999 after his communication had been submitted to the Human Rights Committee. 

 63.       The petitioner’s Article 19 claim was based in part on his conviction under the National Security Law for his gathering and divulging of “state or military secrets” (espionage).  As part of his claim in this regard, the petitioner noted that the information regarded as “secret” was publicly known.  But, due to the Supreme Court’s interpretation of the notion of “secret,” the prosecution did not consider it necessary to establish that release of the information would threaten national security.  The petitioner claimed that it could scarcely be necessary for the protection of national security to censor ideas that were publicly known, and so his conviction and imprisonment fell outside the scope of the legitimate restriction on expression enumerated in Article 19, paragraph 3.    

 64.       The other basis for the petitioner’s Article 19 claim was the “ideology conversion system” that he alleged he was forced to undergo while in prison.  Having been identified as a communist “confident criminal,” the system was designed to induce change in his political opinion through measures such as extended solitary confinement.  The 1991 Regulation on the Classification and Treatment of Convicts reclassified the petitioner’s detention regime to “those who have not shown signs of repentance after having committed crimes aimed at destroying the free and democratic basic order by denying it.”  In his complaint, the petitioner rejected the characterization of being a “communist.”  He claimed that he was held in solitary confinement for 13 years for his refusal to “convert” his political beliefs.  He argued that the coercion to change his political views, and the withholding of benefits (such as the possibility of parole) unless he “converted,” amounted to violations of his right to freedom of conscience. 

 65.       As part of his claim, the petitioner presented a report by the Special Rapporteur of the Commission on Human Rights on the Promotion and Protection of the Right to Freedom of Opinion and Expression.  The report encouraged the repeal of the National Security Law and suggested that the State party cease “the practice of requesting prisoners who allegedly hold political opinions repugnant or unpalatable to the establishment to renounce such opinions” and recommended that “all prisoners who are held for their exercise of the right to freedom of opinion and expression” be released unconditionally.[27]   

 66.       The Committee concluded that the “ideology conversion system” to which the author had been subjected while serving out his sentence was coercive and applied in a discriminatory fashion with the goal of altering the political opinion of an inmate by offering inducements of preferential treatment within prison and an improved possibility of parole.  The Committee concluded that the State party had failed to justify the system as necessary for any of the permissible limiting purposes enumerated in Articles 18 and 19, and so the system restricted freedom of expression and manifestation of belief on the discriminatory basis of political opinion.  The Committee thus concluded that the circumstances of the case constituted a violation of Article 19, paragraph 1.   

 ii.          Svetik v. Belarus (2004)

 67.       In Svetik v. Belarus,[28] the Committee held that advocating boycott of local elections as a form of political expression falls within the ambit of the right to freedom of expression as guaranteed by Article 19.

 68.       The petitioner was a representative of a non-governmental organization called the Belarusian Helsinki Committee (BHC) in the city of Krichev, Belarus.  On March 24, 1999, the national newspaper “Narodnaya Volya” (People’s Will) published a declaration that criticized the authorities in power and appealed to the public not to take part in upcoming local elections as a protest against the electoral law, which the declaration claimed was incompatible with the Belarusian constitution and international norms.  The declaration was written and signed by representatives of hundreds of Belarusian political and non-governmental organizations, including the petitioner.

69.       The petitioner was later summoned to the Krichev prosecutor’s office to explain his signature.  He claimed that only two of the four non-governmental organizations in Krichev that signed the declaration were called to the office, and that these two were considered to belong to the political opposition.  On April 26, the petitioner was summoned to the city’s district court and charged with an offense under the Belarusian Code on Administrative Offenses.  The charge was an administrative sanction for public appeals calling for the boycott of elections.  He was fined the equivalent of two minimum monthly salaries.  The judge threatened to sentence him to the maximum penalty (five times that he was given), as well as to report him to his employer if he did not confess his guilt.  After confessing his guilt, the petitioner appealed his decision to a regional court, which dismissed his appeal on the grounds that his confession was not obtained under duress.  The petitioner’s complaint to the Supreme Court resulted in the conviction being upheld. 

 70.       The Committee framed the issue in this case as whether punishing a call to boycott a particular election is a permissible limitation of the freedom of expression. 

 71.       The Committee noted that Article 25(b) of the ICCPR guarantees the right of every citizen to vote.[29]  It stated that in order to protect this right, States parties to the ICCPR should prohibit intimidation or coercion of voters by strictly enforced penal laws.  The application of such laws constitutes, in principle, a permissible limitation on freedom of expression that is necessary for respect of the rights of others.  Nonetheless, intimidation and coercion must be distinguished from encouraging voters to boycott an election.

 72.       The Committee went on to note that voting was not compulsory in Belarus and that the declaration that the petitioner signed did not affect the possibility of voters to freely decide whether or not to participate in the particular local election.  The Committee thus concluded that the limitation of the liberty of expression in this case did not legitimately serve one of the reasons enumerated in Article 19, paragraph 3, of the ICCPR, and that the petitioner’s rights under Article, 19, paragraph 2, had thus been violated. 

73.       In a concurring opinion, Sir Nigel Rodley sought to point out that it was his hope that the language of the Committee’s opinion did not unwittingly indicate that a system of compulsory voting would of itself justify the enforcement of a law that would punish advocating for the boycott of an election.  Rodley cited examples where it may be theoretically beneficial to pass a law requiring all citizens to vote and where there are “honourable reasons” for opposing regular participation in an electoral process believed to be illegitimate.  He summed up his views by saying that “[m]uch will depend on the context within which a particular system is established.”  Finally, he stated that the Committee could not and should not begin to make judgments on matters such as when it is permissible to advocate non-cooperation with a particular electoral process in a particular jurisdiction.  He concluded that:  

in any system it must always be possible for a person to advocate non-cooperation with an electoral exercise whose legitimacy that person may wish to challenge. . . It would be inconsistent with Article 19 to prevent the advocacy of any means of non-cooperation as a challenge to the process itself. 

 B.        Domestic jurisprudence of the Member States

 1.         Introduction

 74.       The Office of the Special Rapporteur for Freedom of Expression has pursued the aim of furthering comparative law studies as a way of contributing to the flow of information between the Member States regarding the international standards which govern the right to freedom of expression, in the hope that it will lead to a deeper understanding and establishment of the right to freedom of expression in the Americas.  Following these initiatives, the Office of the Special Rapporteur for Freedom of Expression has included in its 2004 Annual Report a Chapter describing the jurisprudence of the United Nations system under Article 19 of the International Convention on Civil and Political Rights and presenting decisions of local courts from the Member States that essentially uphold the standards of freedom of expression.

 75.       In this section, the report refers to the States' domestic jurisprudence, and it includes certain decisions by local tribunals that were handed down during 2004 and that reflect the importance of respecting freedom of expression as protected in the American Convention.

 76.       This section highlights some court decisions that have expressly or implicitly taken account of international standards protecting freedom of expression.  In other words, this section is not a critique of judicial decisions, but rather an attempt to show that in many cases those standards are indeed considered.  The Rapporteur hopes that this attitude will prevail among other judges in the Hemisphere.

77.       As a final thought, it will be clear that not all opinions in the decisions quoted are shared by the Office of the Special Rapporteur for Freedom of Expression, but that the Office agrees with the fundamentals of the decisions.  As a second point, there is no doubt that there are many other cases that could have been summarized in this report.  The selection has been somewhat arbitrary, both for reasons of space and for lack of sufficient information.  The Rapporteur’s Office urges States to provide it in the future with more judicial decisions enforcing the Inter-American system of protection of freedom of expression, so that this section can be expanded in subsequent annual reports.

 78.       The organization of this section takes account, as it must, of the standards arising from interpretation of Article 13 of the Convention.[30]  The standards referred to have been further developed by the jurisprudence of both the Commission and the Court.  Many of those standards have been included in the Declaration of Principles on Freedom of Expression.[31]  For these reasons, the categories described below are related to the various principles of that Declaration. In this report, the categories selected are: (a) the right to access public information; (b) criminal defamation of public officials; (c) journalistic secrets.

 79.       This report covers case law from Mexico, Costa Rica, and Argentina.  In each of the categories, the relevant principle is quoted from the Declaration, followed by a short summary of the facts of the case, and extracts from the decision of the domestic court.

 a.                  Right of access to information

80.       Declaration of Principles on Freedom of Expression. 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.”

81.       Deciding body: Superior Chamber of the Electoral Tribunal of the Federal Judiciary.  Decision of June 25, 2004.  Court record SUP-JDC-041-2004.

 82.       Facts of the case. The first judicial decision in this case was based on the contents of the Law on Transparency and Access to Public Government Information.  In this instance, a journalist, Jorge Arturo Zárate Vite, requested the Federal Elections Institute for information on the monthly salaries or incomes and benefits provided to the national leadership of all registered political parties.  The Committee of the Council on Transparency and Access to Information of the General Council of the Federal Elections Institute refused to provide him the information, saying that the information was not physically under its control.  The court rejected the decision of the Committee and upheld the right of the journalist to access the information requested.

83.       Decision (pertinent paragraphs)

 It is important to mention that, the right of transparency and access to public government information [recognized in 2002] […] entitles the citizen to access information on the activities of national political parties through the Federal Elections Institute.

 […] [O]ne of the purposes for which said law was designed was to ensure that society too should have the real possibility to monitor government activities via the right to information.  [Inasmuch as political parties are public-interest entities], it is inadmissible to deprive or restrict certain basic rights of citizens inherent to their fundamental public subjective right of access to certain information on political parties, since … this information also permits responsible, informed, and, therefore, free, participation in government and elections. 

 [. . .] Indeed, the Superior Chamber finds that, as a citizen, the plaintiff has legal standing under Articles […] 19 (2) of the International Covenant on Civil and Political Rights, and 13 (1)  of the American Convention on Human Rights . . . [B]ased on those provisions it must be concluded that all Mexican citizens, as part of their fundamental rights of suffrage and of their freedom of association for political purposes and of politico-electoral affiliation, have the right to information concerning political parties, such as their organization, workings, resources, statutes, etc.

 b.                  Criminal defamation and public officials

 84.       Declaration of Principles on Freedom of Expression. 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.”

85.       Deciding body: Criminal Court of the First Judicial Circuit of San José, Costa Rica.  Decision of August 24, 2004.  Court record 96-000006-190PE.

86.       Facts of the case.  This ruling was issued after the decision of the Inter-American Court of Human Rights in the case of Herrera Ulloa v. Costa Rica, and it is described in more detail in the section on ‘desacato’ laws and criminal defamation herein.

 87.       Decision (pertinent paragraphs)

 Based on the Judgment of July 2, 2004, issued by the Inter-American Court of Human Rights, the TRIBUNAL resolves:

 The Inter-American Court of Human Rights, in a judgment of July 2, 2004, nullified in all respects, including its scope as regards third parties, the decision of this tribunal issued at 14:00 on November 12, 1999. Based on the foregoing, the orders of the Court were to: a) strike out the proceeding against Mr. Mauricio Herrera Ulloa registered at entry 01, Vol. 136, page 395 of the Judicial Register and Archive; b) revoke the fine of 300,000 colones that don Mauricio was ordered to pay; c) nullify the order to publish the operative part of said decision in the newspaper La Nación, under the section titled “El País”; d) revoke the order to La Nación to remove the Internet link at La Nación Digital web site between the name Przedborski and the disputed Articles; e) Annul the order to La Nación to create a link at La Nación Digital between the disputed Articles and the operative part of the decision; f) nullify the order to pay court costs and attorney’s fees; and, g) annul the order to pay 60 million colones in reparation for moral injury caused.  As regards points 5 to 13 of the above-cited decision, insofar as responsibility for compliance does not belong to the tribunal, the parties concerned should pursue matters with the appropriate authorities.  So ordered.

c.                  Confidentiality of journalistic sources

88.       Declaration of Principles on Freedom of Expression. Principle 8.  “Every social communicator has the right to keep his/her source of information, notes, personal and professional archives confidential.”

89.       Deciding body: General Prosecutors' Office, Province of Neuquén.

Decision of September 8, 2004.  Court File 11761-4.

90.       Facts of the case.  According to the opinion of Prosecuting Attorney Dr. W. Richard Trinchera, the case:

[. . .] was initiated as a result of a complaint filed with this agency on August 4, 2004, by the Minister of Security and Labor of the province [of Neuquén], who requested an investigation with a view to protecting his good name and honor, as a result of an Article published in the morning paper, Río Negro, of that same day, on the premise that the contents of that Article were wholly false.  The complaint requests the investigation of the aforementioned newspaper, in order to determine which journalist wrote it; who supplied the information; and if meetings took place between Río Negro journalists, justice officials, Sagarzasu, and technical advisors of the latter. The complaint further requests that employees of the judiciary, in particular those who work in office of the prosecutor for crimes against public administration, be summonsed for questioning, in order for them to provide information on the procedure for the release of information to the press, which journalists frequent the offices of the agency, and on what legal authority information is provided.

It also sought the investigation of the possible use of false accusations to defame public servants of the provincial executive branch as a deliberate maneuver to tarnish reputations and reap political gain, so that although the accused are finally cleared by the courts, their reputations are badly injured because the news is carried by the press over months or even years.

 91.       Decision (pertinent paragraphs)

 [ . . . ] I should make clear the position of this office with respect to the complainant’s request regarding an investigation of the person or persons who supplied the information that enabled the newspaper to publish the Article in question.  No judicial or police authority may or should adopt measures in an enquiry that jeopardize the confidentiality of journalistic sources, particularly since the reform of the Constitution in 1994, which protects unconditionally the personal information of registered journalists and, more importantly, protects the knowledge of where such information was obtained.  In other words, the Argentine Constitution (Article 43, penultimate paragraph) protects the secrecy of the source from which the information in the journalist’s possession came.  The freedom to receive information (that, together with the freedom to impart information, is part of the right to freedom of thought and expression) is also recognized at Article 13(1) of the American Convention on Human Rights (also known as the Pact of San José, Costa Rica), an international instrument with the same rank as the Constitution (Article 75(22) of the Argentine Constitution).

---

1889 F St. N.W. Washington, DC, U.S.A. 20006 / E-mail: cidhoea@oas.org / Phone: (202) 370-9000 / Fax: (202) 458-3650