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Freedom of Expression

3 - Chapter II – Assessment of the Situation of Freedom of Expression in the Hemisphere

 

     This chapter deals with the situation of freedom of expression and information in the hemisphere, and it singles out the main problems and challenges. It begins with some basic principles of freedom of expression and information that the hemisphere’s various domestic legal systems must recognize in order to guarantee effective exercise of this right. It also discusses two other issues of great importance: women and freedom of expression, and the Internet and freedom of expression. At the end of the chapter there is a mention of some states that warrant the attention of this office.

 

     A.         Introduction

 

     Freedom of expression and information in the hemisphere has improved notably in comparison with past decades, when dictatorial or authoritarian regimes aggressively curtailed freedom of expression and information. However, in many States, freedom of expression and information is still in peril, because the climate necessary to cultivate and protect it has not been created.  A wide variety of factors have contributed to this situation.  Journalists are killed and/or abducted.  The media and journalists in general are routinely exposed to threats, harassment and intimidation.  All too often, crimes committed against journalists go unpunished.  Some laws are inconsistent with the American Convention on Human Rights and other international instruments. The courts sometimes harass and intimidate journalists and rule in favor of prior censorship.

 

     The murder of journalists is undoubtedly the most brutal method of abridging freedom of expression and information.  In 1999, six journalists were killed because of their journalistic activities:  five in Colombia and one in Argentina.  This is less than the number given in the 1998 Report, which reported that 18 journalists had been killed in various States in the hemisphere by reason of their profession.[1]

 

The intimidation of journalists and/or their families, through verbal and/or written threats, and the physical assaults upon their persons and/or property is the method most often used to abridge freedom of expression and information.  In 1999, the Special Rapporteur received numerous communications reporting cases where journalists had been intimidated, especially those engaged in investigative journalism.

 

     Because freedom of expression is so crucial to any democratic system, States must step up their efforts to comply with their duty to investigate and prosecute crimes against freedom of expression and punish those responsible, and to prevent any unlawful interference with the enjoyment of this right.  The Commission has established that the failure to conduct a serious investigation of crimes against journalists and to prosecute and punish the material and intellectual authors of those crimes is not only a violation of the guarantees of due process of law and other rights, but also a violation of the right to inform and be informed and to express oneself freely and publicly.  In these cases the State incurs in international responsibility.[2]

 

     Although murder, abduction, and intimidation are the principal means used to curtail freedom of expression and information, the existing legal restrictions are the main institutional obstacle to the full and effective recognition and enjoyment of this right, protection of the other basic rights, and the development of a pluralistic, democratic society.  The first step toward building a defense of the right to freedom of expression and information is the enactment of the proper laws.  Many laws in this hemisphere do not measure up to international standards and must be amended for the States to have a body of law that promotes and defends freedom of expression and information.

 

     For example, many States in this hemisphere still have the so-called desacato laws on the books.[3]  In some States journalists continue to be harassed with the threat of being charged with the crime of slander and libel.  In some States, a journalism degree is required to practice the profession, and under many legal systems access to public or personal information is restricted.  Some States have embraced the concept of truthful information, which in 1999 was introduced into the Venezuelan Constitution.  That is one of the most serious setbacks for freedom of expression and information in this hemisphere.

 

     It is important to emphasize that under Article 2 of the American Convention, the States have a duty “to adopt, in accordance with their constitutional processes and the provisions of the Convention, such legislative or other measures as may be necessary to give effect to th[e] rights or freedoms” set forth in the American Convention.  The Court has ruled that “every State has the legal duty to adopt the measures necessary to comply with its obligations under the treaty, whether those measures be legislative or of some other kind.”[4]

 

     This main purpose of this report is to bring to the States’ attention the main problems in the legislation, so that they may be resolved and the laws brought in line with international standards.

 

 

     B.        Legislation and freedom of expression

 

Any analysis of the laws that directly affect freedom of expression and information must be premised upon the fundamental role that freedom of expression and information plays within a democratic society.  There can be no democratic society where the right to freedom of expression is not respected.  Democracy relies heavily on broad freedom of expression, not simply because the right itself must be respected, but also because freedom of expression and information is vital in order to guarantee respect for the other basic rights.[5]

 

     Both the Commission and the Court have repeatedly pointed up how crucial freedom of expression and information is to the growth of democracy.  In one of its advisory opinions, the Court specifically held that freedom of expression and information “is a cornerstone upon which the very existence of a democratic society rests.  It is indispensable for the formation of public opinion. (…) 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.”[6]  The Court has also held that inasmuch as freedom of expression, information and thought is the cornerstone of the democratic system and the very basis of public debate, the American Convention attaches “an extremely high value” on this right and reduces to a minimum any restrictions on it.  As the Court has held, it is in the interest of “the democratic public order inherent in the American Convention” that every person’s right to freely express oneself be “scrupulously respected.”

 

Quoting the Inter-American Court, the Commission wrote that “this constant reference to democracy in Article(s) 29 and 32 indicates that when provisions of the Convention are critical to the ‘preservation and functioning of democratic institutions’, the ‘just demands of democracy must guide their interpretation.”  Hence, “the interpretation of the Article 13(2) restrictions on freedom of expression must be ‘judged by reference to the legitimate needs of democratic societies and institutions,’ precisely because freedom of expression is essential to democratic forms of governance.”[7]

 

 

     The importance that the Inter-American System attaches to freedom of expression and information is evident from the fact that the American Convention is more generous in its guarantee of freedom of expression than the European Convention and the International Covenant of Civil and Political Rights.  Similarly, the European Court has held that freedom of expression and information should apply not just to favorable information and ideas but also to those that “offend, shock or disturb” and that these “are the demands of pluralism, tolerance and broadmindedness without which there is no democratic society.”

 

     It is against this backdrop of sweeping protection and minimum restriction as a pillar of a democratic society that laws governing the right to freedom of expression must be evaluated.  A series of doctrines are discussed below.  Their inclusion in the member States’ legal systems will represent a significant step forward in the protection of freedom of expression.  The member States need to begin to examine, discuss and adopt new mechanisms that allow for broader protection of freedom of expression and information.  A reference is also made to the concept of truthful information recently included in Venezuela’s Constitution.

 

1.         The Dual System of Protection: Public Persons and Private Persons

 

The right to freedom of expression and information is one of the main tools available to society for exercising democratic control over the individuals responsible for matters of public interest.  Therefore, to abridge freedom of expression and information is to abridge or diminish the citizens’ control over their public officials and to transform democracy into a system where authoritarianism can find fertile ground for imposing itself upon the will of society.[8]

 

     Representative democracy requires that public officials, or all those involved in public affairs, be responsible to the men and women they represent.  In a democratic society, citizens delegate the administration of public affairs to their representatives.  But the citizenry retains control and must have an open right to monitor, with as few restrictions as possible, their representatives’ conduct in the public affairs.

 

     Full and effective control of the management of public affairs is necessary to preserve a democratic society.  Persons in charge of managing public affairs must be less guarded from criticism than the average private citizen not involved in public affairs.

 

     The Commission wrote that:

 

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.[9]

 

     The Commission then added the following:

 

Moreover, … 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.[10]

 

     The European case law, like that of the United States, shares this principle of a distinction in the level of protection granted to public and private persons.  In the Lingens case, the European Court held that “the limits of acceptable criticism are … wider as regards a politician as such than as regards a private individual.  Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance.”[11]

 

     The first implication of this dual system of protection is the obligation incumbent on the member states to repeal their desacato laws to bring them into line with Article 13 of the American Convention.[12]  The Commission has said that it understands that, “the State’s use of its coercive powers to restrict speech lends itself to abuse as a means to silence unpopular ideas and opinions, thereby repressing the debate that is critical to the effective functioning of democratic institutions.  Laws that criminalize speech which does not incite lawless violence are incompatible with the freedom of expression and thought guaranteed in Article 13, and with the fundamental purpose of the American Convention of allowing and protecting the pluralistic, democratic way of life.”

 

     In his first Annual Report, the Special Rapporteur called upon the member States to repeal the contempt [desacato] laws inasmuch as they are incompatible with the objective of a democratic society, which is to nurture public debate, and are contrary to Article 13 of the American Convention.

 

Another consequence of the dual system of protection is the need for the member states’ legislation to incorporate the doctrine of “actual malice,” which is explained below.  Here again, many of the countries of the hemisphere have slander and libel laws that need to be amended.

 

     a.         Actual Malice[13]

 

     The dual system of protection means, in practice, the imposition of civil damages alone in cases where false statements made with “actual malice” are present.[14]  In The New York Times Co. v. Sullivan, the United States Supreme Court ruled 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 the knowledge that it was false or with reckless disregard of whether it was false or not.”[15]

 

     This doctrine was enshrined in Vago v. Ediciones La Urraca S.A.,[16] a case dealing with damages, in which Argentina’s Supreme Court of Justice ruled that, “those that deem themselves affected by false or inaccurate information must prove that the person who produced said information acted with malice.”[17]

 

     The Commission’s report on contempt [desacato] laws does not make specific mention of the principle of “actual malice.”  However, its acceptance of the principle can be inferred from the fact that the Commission recognizes that public officials are subject to closer scrutiny and discards “exceptio veritatis” (defense of truth) as an adequate defense for duly guaranteeing freedom of expression.

 

     The Commission’s reference to the fact that public officials and public figures are subject to closer scrutiny was explained in the previous section.  As for the principle of exceptio veritatis (defense of truth), which is to say the possibility of proving the veracity of statements made, the Commission concluded that this was not sufficient:

 

Even those laws which allow truth as a defense inevitably inhibit the free flow of ideas and opinions by shifting the burden of proof onto the speaker.[18]

 

     Finally, when the information that prompted a lawsuit is a value judgment rather than a statement of fact, there can be no liability.  One of the requirements for liability is that the falsehood of the information can be proved or that the respondent published a statement that he or she knew was false or very likely false.  If the information is a value judgment, it cannot be shown to be either true or false, since it is an entirely subjective assessment not susceptible of proof.[19] In this regard, the Commission has said:

 

This is particularly the case in the political arena where political criticism is often based on value judgments, rather than purely fact-based statements.  Proving the veracity of these states may be impossible, since value judgments are not susceptible of proof.  Thus, a rule compelling the critic of public officials to guarantee the factual assertions has disquieting implications for criticism of governmental conduct.  It raises the possibility that a good-faith critic of government will be penalized for his or her criticism.[20]

 

b.   Decriminalizing Libel and Slander Laws

 

     If Article 13 and the report on desacato laws are interpreted within the democratic context referred to  at the beginning, it then becomes necessary to amend those laws whose primary purpose is to protect the honor of persons (commonly known as slander, libel and defamation laws).  In the report on desacato laws, indirect reference is made to this type of legislation:

 

The sort of political debate encouraged by the right to free expression will inevitably generate some speech that is critical of, and even offensive to those who hold public office or are intimately involved in the formation of public policy.  A law that targets speech that is considered critical of the 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.[21]

 

     While the Commission’s report concerns to the desacato laws in particular, it is also true that slander and libel laws are often used not so much to protect a person’s honor as to attack –or, better said, silence- speech that is considered critical of government, as the Commission has noted.

 

     As for criminal law, the Office of the Rapporteur recommends to derogate slander and libel laws, when the circumstances described above are present.  Again, decriminalization of these offenses is consistent with the Commission’s interpretation of Article 13 in the Report on Desacato Laws.  Criminalization of speech targeted at public officials is disproportionate when compared to the important role that free speech and information play within a democratic system.  The Commission wrote that:

 

(…)  However, particularly in the political arena, the threshold of State intervention with respect to freedom of expression is necessarily higher because of the critical role political dialogue plays in a democratic society.  The Convention requires that this threshold be raised even higher when the State brings to bear the coercive power of its criminal justice system to curtail expression.  Considering the consequences of criminal sanctions and the inevitable chilling effect they have on freedom of expression, criminalization of speech can only apply in those exceptional circumstances when there is an obvious and direct threat of lawless violence.[22]

 

     The Commission added the following:

 

The Commission considers that the State’s obligation to protect the rights of others is served by providing statutory protection against intentional infringement of honor and reputation through civil actions and by implementing laws that guarantee the right of reply.  In this sense, the State guarantees protection of all individuals’ privacy without abusing its coercive powers to repress individual freedom to form opinions and express them.[23]

 

     Therefore, the interpretation of Article 13 of the Convention and the Report on Desacato Laws according to the democratic system that the Convention guarantees, the Special Rapporteur concludes that to ensure that freedom of expression is properly defended, the States should discuss the convenience of incorporating the distinction between public and private persons in their laws protecting honor. The acceptance of this doctrine requires repealing the desacato laws, to incorporate the principle of “actual malice,” and decriminalizing slander and libel when they are used to protect discourse that is critical of government.

 

2.            Faithful reporting

 

According to this principle, when information is faithfully reported, no liability or responsibility is incurred, even if the information is incorrect or can damage someone’s honor,.  This principle can be traced back to a 1796 case in the United Kingdom, Curry v. Walter.   In that case, Judge Eyre ruled that although the subject matter contained in the newspaper could be truly prejudicial to the person of the magistrates, because it was an account of something that transpired in a public court of law, its publication was not illegal.[24]

 

     The Spanish Constitutional Court has also relied on this doctrine.  The Director of the newspaper Egin was convicted of advocacy of criminal conduct for having published communiqués from the ETA terrorist organization.  The Spanish Constitutional Court held that “the courts should have relied on the interpretation most favorable to the basic right and to its effects on the related norms of criminal law.  Such an interpretation would have dictated the journalist’s right to impart, and his readers’ right to receive, complete and truthful information.  It is an objective, institutional guarantee.   For the journalist to assert that right, his conduct must be devoid of any criminal intent; instead, he must confine himself to simply reporting the information, even though the content of that information be criminal in nature.”  In a ruling on a case involving La Voz de Asturias, the Constitutional Court held that “(…) as this is a case of imparting information, where the medium has confined itself to faithfully reporting statements entirely alien to it, the medium cannot be regarded as the ‘author of the news’.  It cannot be held responsible for the authorship of news not attributable to it.”[25]

 

     In Argentina this is known as the Campillay principle, because of the decision in a suit that the actor Campillay brought against the newspapers La Razón, Crónica and Diario Popular.  The three newspapers had carried stories that incorrectly reported that the actor was involved in the incident.   The Argentine Supreme Court recognized that the publications had merely transcribed an official but incorrect Police press release that implicated Campillay in a number of crimes.  The decision cleared the newspapers of all any wrongdoing.

 

     This principle is also based on the importance of freedom of expression and information for a democratic society.  Democracy requires a public, free-flowing and wide-ranging debate.  Publishing information supplied by third parties must not be restricted by threatening the publisher with holding him or her responsible for reporting statements made by others.  The contrary, will abridge every person’s right to be informed.

 

 

 

 

3.         Freedom of information

 

The Office of the Rapporteur is conducting a study on habeas data and on the freedom to access official information.[26]   The goal is to analyze the legislation and practices within the hemisphere and their compatibility with the American Convention on Human Rights.  In November 1999, the Special Rapporteur informed the member States of this initiative and requested information to determine what their laws, jurisprudence and practices were in this regard.

 

     Under Article 13 of the American Convention on Human Rights, the right to freedom of thought and expression includes “freedom to seek, receive, and impart information and ideas of all kinds.” The Inter-American Court has held that “it can be said that a society that is not well informed is not a society that is truly free.”[27]  It has also stated that “For the average citizen it is just as important to know the opinions of others or to have access to information generally as is the very right to impart his own opinion.”[28]

 

     As to the scope of freedom of expression and information, the Court wrote the following:

 

…those to whom the Convention applies not only have the right and freedom to express their own thoughts but also the right and freedom to seek, receive and impart information and ideas of all kinds… (Freedom of expression) requires, on the one hand, that no one be arbitrarily limited or impeded in expressing his own thoughts.  In that sense, it is a right that belongs to each individual.  Its second aspect, on the other hand, implies a collective right to receive any information whatsoever and to have access to the thoughts expressed by others.[29]

 

     The right to access to official information is one of the cornerstones of representative democracy.  In a representative system of government, the representatives should respond to the people who entrusted them with their representation and the authority to make decisions on public matters.  It is to the individual who delegated the administration of public affairs to his or her representatives that belongs the right to information.  Information that the State uses and produces with taxpayer money.

 

     Procedures that ensure access to information held by the government is one way to monitor state governance and one of the most effective means of combating corruption.  The absence of effective control can “imply activity utterly inimical to a democratic State and opens the door to unacceptable transgressions and abuse.”[30]  Guaranteeing access to official information helps to increase transparency in government affairs and thus serves to reduce government corruption.

 

     It is important to note that while access to government information is a basic right of individuals, the exercise of that right is not absolute.[31]  Article 13.2 of the American Convention provides for certain restrictions.  The general principle that official information is public in nature is subject to limitations when there is some interest at stake that requires that the information be kept confidential.  These restrictions are few, however, and must be expressly stipulated by law.  They generally apply to information related with national security and public order.

 

     One important aspect of the right to information is the petition of habeas data, whereby any person may have access to information about himself or his property contained in public or private databases or records and, when necessary, may update or correct it.  This petition is becoming increasingly important with the introduction of new communication technologies like the Internet.  With the growth of  these technologies, both the State and the private sector will have rapid access to a vast amount of information about the individuals.  At the same time, the accelerated pace at which the information available on the Internet is growing makes the existence of channels by which to access that information all the more imperative should it be necessary to correct inaccurate or out-of-date information in electronic data banks.

 

     In addition to the recognition of the right of access to information and habeas data, there must be a rapid and effective procedure so that this right can be fully exercised. In many States an administrative bottlenecks makes it difficult to obtain information, new mechanisms should be incorporated that will make simple and inexpensive for applicants to request information.[32]

 

     A study comparing the laws in this hemisphere reveals that initiatives aimed at full recognition of the right to access to information held by the government and the petition of habeas data have been developed.  In Argentina, for example, Article 43 of the Constitution recognizes habeas data and reads as follows:

 

Every person shall have the right to file a petition (of habeas data) to see any information that public or private data banks have on file with regard to him and how that information is being used to supply material for reports.  If the information is false or discriminatory, he shall have the right to demand that it be removed, be kept confidential or updated, without violating the confidentiality of news sources.

 

     Argentine jurisprudence has affirmed that the petition of habeas data recognized in Article 43 of the Constitution has a twofold purpose:

 

On the one hand, anyone can see the data that public or private databases or records have on file with regard to him and the use to which that data is being put.  On the other hand, if there is some misinformation or discrimination, this Article gives the individual the right to demand that the information be removed, corrected, kept confidential or updated, without breaching the confidentiality of news sources.[33]

 

     Article 28 of Venezuela’s new Constitution provides that:

 

Every person shall have the right to access the information and data that official or private records have on file with regard to his person and/or property, with the exceptions that the law stipulates.  He or she shall also have the right to know how that information is being used and to what purpose, and to petition the competent court to have the information updated, corrected or destroyed, if there are errors or his or her rights are unlawfully affected.

 

     Article 200, subparagraph 3 of Peru’s Constitution expressly recognizes the petition of habeas corpus as a constitutional guarantee:

 

A petition of habeas data filed against an act or omission on the part of any authority, official or person, that violates or threatens the rights to which Article 2, paragraphs 5 and 6, refers.

 

     In November 1998, the Autonomous Government of the City of Buenos Aires, Argentina, passed Law No. 104, recognizing every person’s right to request information in the city government’s possession.  Article 1 reads as follows:

 

In accordance with the principle that all government affairs shall be public, any person shall be entitled to request complete, truthful, adequate and timely information from any organ of the central administration, the decentralized administration, independent regulatory agencies, State-owned businesses and companies, corporations in which the State is the majority shareholder, dual economy ventures, and all those other businesses in which the City Government is a shareholder or has some role in corporate decision-making, from any office of the legislative and judicial branches of the city government, insofar as their government business is concerned, and the other organs established under Book II of the Constitution of the City of Buenos Aires.

 

     Provisions relating to access to information held by the government are found elsewhere in Peru’s Constitution, under Article 2, number 5:

 

To request, without indicating the reason, the information that one requires and to receive it from any public entity, within the legal time period, at the cost that the request involves.  The exceptions are information affecting personal privacy and those expressly precluded by law or for reasons of national security (…)

 

     Canada’s Access to Information Act provides that records held by federal government institutions are to be available to the public.  Sections 14 to 16 stipulate the exceptions to the general principle of open access to information held by the federal government.  Those exceptions basically concern information on international affairs and defense, law enforcement and investigations, and information whose disclosure would be injurious to the conduct of government of federal-provincial affairs.

 

     Section 7 of Canada’s Privacy Act protects personal information held by the government.  This law restricts unauthorized disclose of that personal information.  Under the law, personal information can only be used for the purpose for which it was compiled.

 

     In the United States, access to information in the federal government’s possession is also guaranteed.  Originally passed in 1966, the Freedom of Information Act recognizes the right to obtain public information, by guaranteeing that citizens shall have the right to access to information about them held by the federal government.  The government is permitted to charge for the costs of searching, retrieving and copying the information.

 

     The law upholds the principle that all records of federal agencies must be accessible to the public unless one of the specific exceptions obtains.  Section 552(b) lists nine cases in which government agencies are authorized to deny access to information contained in their databases.  Those reasons include the following: 1) information that is confidential for reasons of national defense or international policy; 2) information exclusively related to internal personnel rules and practices of government offices; 3) information specifically exempted from disclosure by statute; 4) trade secrets and commercial or financial information obtained from a person and privileged and confidential; 5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency; 6) personnel, medical and similar files the disclosure of which would constitute an unwarranted invasion of privacy; 7) information for law enforcement purposes; 8) information obtained for purposes of regulation and supervision of financial institutions, and 9) geological and geophysical information related to oil wells.

 

     If the information is denied, the applicant may file an appeal with the agency.  Should the agency again refuse to supply the information without giving just cause, the applicant can appeal to the federal courts, which can order that the information be released and even impose sanctions.

 

     Finally, the special Rapporteur would like to endorse the principles the “Public´s Right to know:  Principles on Freedom of Information Legislation”, developed by the non-governmental organization Article XIX.  These principles establish the fundamental basis and criteria to secure an effective access to information.[34]

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