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REPORT OF THE SPECIAL RAPPORTEUR
FOR FREEDOM OF EXPRESSION

 

INTRODUCTION 

The right of freedom of expression is a fundamental guarantee for ensuring the rule of law and democratic institutions. Article IV of the American Declaration of the Rights and Duties of Man stipulates that: “Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever.”[1]  Similarly, Article 13 of the American Convention[2] states that: “Everyone has the right to freedom of thought and expression.  This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.”[3] 

 Similarly, the importance of freedom of expression in the hemisphere was recognized and enshrined in the Declaration of Chapultepec, which was adopted in March 1994 and has been signed by numerous heads of state and government. Principle No. 1 of this Declaration states that: No people or society can be free without freedom of expression and of the press. The exercise of this freedom is not something authorities grant, it is an inalienable right of the people.”[4] 

The Special Rapporteur for Freedom of Expression recognizes that freedom of expression covers a wide range of activities that affect all individuals. This report refers only to some of the wide range of issues affecting freedom of expression. The Special Rapporteur will continue to issue reports dealing with other areas related to this basic right that are not addressed herein. 

The democratic system now pervasive in the hemisphere has helped secure greater respect for the right to freedom of expression than never before. Notwithstanding these important accomplishments, we ought not to delude ourselves into thinking that there are no violations of freedom of expression or that whatever violations do exist are inconsequential.  The Office of the Rapporteur has been functioning for almost two years and, in that time, has encountered many cases in which freedom of expression and information has been abridged. They include almost absolute censorship, murders, assaults, threats against journalists, clearly restrictive laws, persecutions conducted through judicial channels, and so on.  The democracy achieved in recent years should inspire us to find answers to these problems rather than hide behind its façade and deny them.  Greater freedom of expression serves to make democracy deeper and stronger.  Although approximately two decades have passed since the return to democratic government, freedom of expression and information is still limited in a number of States in this hemisphere. 

This report states that many domestic laws need to be amended to bring them in line with international norms for the protection of freedom of expression and information.  Among the laws in need of change are those on expression offensive to public officials (desacato laws) and those on libel and slander. The right to access to official information and the right to habeas data must also be guaranteed. Without laws clearly in line with international standards for freedom of expression, this right, so basic to democracy, will always be in jeopardy. 

Similarly, one of the most controversial issues with regard to freedom of expression in recent years concerns the concept of truthful information.  In its Advisory Opinion on compulsory membership in associations for the practice of journalism, the Inter-American Court of Human Rights stated that: “One cannot legitimately rely on the right of a society to be honestly informed in order to put in place a regime of prior censorship for the alleged purpose of eliminating information deemed to be untrue in the eyes of the censor.”[5] 

Violence against journalists continues throughout the hemisphere.  Murders, assaults and threats are a frequent occurrence, yet too many States still refrain from taking the measures needed to bring the responsible to justice. 

The lack of equality encountered by women in exercising their right to freedom of expression and information is also a major source of concern for the Office of the Rapporteur.  Bringing about greater freedom of expression and information for women will have a positive effect on securing respect for other basic rights. 

Another of the issues included in this report is freedom of expression and the Internet. Mention is made of the need to promote widespread access to this technology within the legal framework of protection established by Article 13 of the American Convention. 

The purpose of this report is to bring some of the major problems in the hemisphere to public attention.  The idea is to spark public debate and to inform about the need for amending domestic laws.  All this will help lead the changes needed to make democracies now prevalent throughout the hemisphere stronger, by engaging every sector of society in the exercise of free expression and opinion.

 

CHAPTER I

 GENERAL REPORTS

 

    A.       Mandate and competence of the Office of the Rapporteur for Freedom of Expression and Information 

The Office of the Special Rapporteur for Freedom of Expression and Information is a permanent office with functional independence and its own budget.  The Inter-American Commission on Human Rights created the Office in exercise of its authorities and competence.  The Office operates within the juridical framework of the Commission.[6] 

The Inter-American Commission on Human Rights (IACHR) is an organ of the Organization of American States (OAS) whose primary function is to promote the observance and defense of human rights and to serve as the Organization’s advisory body on this subject.  The Commission’s authority derives mainly from the American Convention on Human Rights,the American Declaration of the Rights and Duties of Man and from the Charter of the Organization of American States.  The Commission investigates complaints of human rights violations, renders its findings on those complaints, conducts on-site visits, prepares draft treaties and declarations on human rights, and prepares reports on the situation of human rights in the countries of the region. 

The Commission has addressed the specific issue of freedom of expression by way of its system of individual petitions, where it has ruled on cases of censorship and crimes committed against journalists that have gone unpunished.  In its special reports, such as the report on contempt laws that penalize expression offensive to public officials (leyes de desacato),[7] the Commission has spoken out about threats to the media and the restrictions placed on the media.  Similarly, the Commission has examined the situation of freedom of expression and information during a number of its on-site visits and in its general reports.[8]  The Commission has also requested precautionary measures for urgent action to avoid irreparable harm to persons.[9]  In several cases, these measures were adopted to allow freedom of expression to be exercised in full and to protect journalists.[10]  

The Commission saw the deep concern that many sectors of society in the member States shared with regard to the restrictions constantly placed on exercise of the right to freedom of expression and information and listened to their suggestions.  From its own observations, the Commission perceived the serious threats and obstacles to freedom of expression and information, a building block and buttress of the rule of law. Therefore, at its 97th regular session in October 1997 and in exercise of the authorities that the Convention and its own Regulations confer upon it, the Commission, by unanimous vote, decided to create an Office of the Special Rapporteur for Freedom of Expression (hereinafter “the Office of the Rapporteur”).  It established it as a permanent unit with functional independence and its own operating structure.  At its 98th special session in March 1998, the Commission determined what the general characteristics and functions of the Office of the Rapporteur would be and decided to create a voluntary fund of economic assistance for the Office.[11]  In 1998, the Commission announced a public competition for the position of Special Rapporteur for Freedom of Expression in the Americas.  After evaluating all the applications and interviewing a number of candidates, the Commission decided to appoint an Argentine attorney, Santiago Alejandro Canton, as Special Rapporteur.  The latter started his work on November 2, 1998. 

In creating the Office of the Rapporteur, the Commission had several objectives in mind for it.  It wanted the Office to stimulate awareness of the importance of full respect for freedom of expression and information in the hemisphere, given the fundamental role that right plays in building and strengthening the democratic system of government and in getting violations of the other rights reported and protected.  It also wanted it to make specific recommendations to the member States on matters related to freedom of expression and information so that they will adopt progressive measures to further it.  Another goal was to have reports and specialized studies prepared on the subject pointing up where this right is being violated in some OAS member State. 

The Commission’s idea of creating a permanent Office of the Rapporteur for Freedom of Expression and Information had the full support of the OAS member States during the Second Summit of the Americas.  There, the Chiefs of State and Heads of Government of the Americas recognized the fundamental role that freedom of expression and information plays in human rights and within a democratic system and expressed their satisfaction with the creation of this Office.  In the Declaration of Santiago, adopted in April 1998, the Chiefs of State and Heads of Government expressly stated that: 

We agree that a free press plays a fundamental role in this area and we reaffirm the importance of guaranteeing freedom of expression, information, and opinion.  We commend the recent appointment of a Special Rapporteur for Freedom of Expression, within the framework of the Organization of American States.[12] 

          At that same Summit of the Americas, the Chiefs of State and Heads of Government expressed their commitment to support the Office of the Rapporteur for Freedom of Expression.  The Plan of Action from that Summit contains the following recommendation: 

Strengthen the exercise of and respect for all human rights and the consolidation of democracy, including the fundamental right to freedom of expression and thought, through support for the activities of the Inter-American Commission on Human Rights in this field, in particular the recently created Special Rapporteur for Freedom of Expression.[13]

 

          B.            The Office of the Rapporteur’s principal activities in 1999 

Since taking office in November 1998, the Special Rapporteur has participated in numerous events to inform about the activities and objectives of this Office.  The following is a description of the principal activities carried out during 1999. 

          In March the Special Rapporteur attended the Midyear Meeting of the Inter-American Press Association (IAPA), held in Jamaica.  In May, he participated in a conference held on the occasion of World Freedom of the Press Day with the United Nations Educational, Scientific and Cultural Organization (UNESCO) in Bogota, Colombia.  In June, he attended the twenty-ninth regular session of the OAS General Assembly, held in Guatemala City. 

          In June he traveled to Chile at the invitation of two universities.  He was there to participate in two seminars on freedom of expression and information, prompted by the recent court-ordered censorship of El Libro Negro de la Justicia Chilena [the Black Book of Chilean Justice] written by Alejandra Matus and published by Planeta publishers.  During his visit in Chile, the Special Rapporteur had an opportunity to speak and meet with officials from the administration, the courts and the legislature, as well as journalists, representatives of the media, professors and members of civil society in general.[14] 

          In July, in Antigua, Guatemala, the Special Rapporteur attended the 6th Seminar on the Media and Democratic Society, organized by the freedom of expression program of the Inter-American Institute of Human Rights.  This seminar was aimed at journalists, nongovernmental organizations, and civil servants from Central America and Mexico. Also in July, the Special Rapporteur joined the Inter-American Commission on Human Rights for an on-site visit to Paraguay.  During the visit, he met and spoke with Paraguay’s highest authorities, as well as journalists, representatives of the media and civil society in general.  The Special Rapporteur is currently preparing a report on the situation of freedom of expression and information in Paraguay, which will shortly be presented to the Commission.[15] 

          In October he participated in the 55th General Assembly of the Inter-American Press Association (IAPA) in Houston, Texas, with more than 500 other delegates from across the hemisphere.  As he had at his first meeting with the IAPA, the Special Rapporteur said that he hoped to arrange a smooth, free-flowing exchange of information and experiences with the IAPA. During this meeting, the Rapporteur again had occasion to meet personally with a number of IAPA representatives and discuss the status of freedom of expression and information in a number of countries of the region. 

          At OAS headquarters in November, the Special Rapporteur welcomed Panama’s Foreign Minister, His Excellency José Miguel Alemann, and Panama’s Ambassador of Multilateral Policy, Carlos Guevara Mann.  During the meeting, various views were shared on the situation of freedom of expression and information in Panama.  The Panamanian government expressed an interest in having the Special Rapporteur visit that country in order to acquaint himself with the situation of freedom of expression and information in Panama and examine it in depth.  The Foreign Minister invited the Special Rapporteur to attend the conference on Panama: Gateway to the Twenty-first Century, organized by the Ministry of Foreign Affairs as part of the events to mark the transfer of the Panama Canal.  The Special Rapporteur accepted the invitation and attended the event in December. 

          In late November, the International Centre against Censorship, a nongovernmental organization headquartered in London and also known as Article XIX, invited the Special Rapporteur to participate in the seminar titled “International Mechanisms for Promoting Freedom of Expression.”  The event was also attended by the other two defenders of freedom of expression and information in the world: Abid Hussain, United Nations Special Rapporteur on Freedom of Opinion and Expression, and Freimut Duve, the Organization for Security and Cooperation in Europe (OSCE) Representative on Freedom of the Media.  The three rapporteurs analyzed the major problems and challenges for freedom of expression and information in the various regions of the world.  They agreed to meet annually and to coordinate efforts with a view to conducting joint activities for better protection and dissemination of the right to freedom of expression and information.  At the end of the seminar, the three promoters of freedom of expression and information signed a joint statement, which will be discussed at greater length later in this report.  A copy is attached.[16] 

          In late December, the Special Rapporteur was invited to participate at a plenary session of the committees of the Argentine Senate. The Special Rapporteur explained his views and shared his ideas on the bill to decriminalize the crimes of slander and libel, which arose from the friendly settlement proceedings begun by the journalist Horacio Verbitsky within three cases that are currently before the Commission. In addition to Dr. Canton, the event was also attended by Senator José Romero Feris, member of the Committee on Freedom of Expression, Minister of Justice Ricardo Gil Lavedra, journalist Horacio Verbitsky, who is Vice President of PERIODISTAS, constitutional lawyer Gregorio Badeni, and Senators Pedro Del Piero and José Genoud.

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[1] American Declaration of the Rights and Duties of Man, adopted by the Ninth International Conference of American States,  Bogotá, Colombia, 1948, Chapter One, Article IV.

[2] See complete text of Article 13 of the American Convention in Appendix 1.

[3] Pursuant to Article 1 of the Statute of the Inter-American Commission on Human Rights, the Inter-American Commission on Human Rights takes “human rights” as meaning:

a. The rights set forth in the American Convention on Human Rights, in relation to the States Parties thereto;

b. The rights set forth in the American Declaration of the Rights and Duties of Man, in relation to the other member states.

Statute of the Inter-American Commission on Human Rights, Resolution No. 447 (IX-0/79), adopted by the Ninth Regular Session of the OAS General Assembly, October 31, 1979, Article 1, paragraphs 1 and 2.

[4] Declaration of Chapultepec, adopted by the Inter-American Press Association at the Hemisphere Conference on Free Speech in Mexico City on March 11, 1994. The full text of the Declaration can be found in Appendix 5. The Declaration  has been ratified by the heads of state and government of Argentina, Bolivia, Belize, Brazil, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Puerto Rico, Uruguay, and the USA.

[5] Inter-American Court of Human Rights, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 of the American Convention on Human Rights), Advisory Opinion OC-5/85.  Series A No. 5, para. 33.

[6] See articles 40 and 41 of the American Convention on Human Rights and Article 18 of the Statute of the Inter-American Commission on Human Rights.

[7] IACHR, Annual Report 1994, Report on the Compatibility between the Desacato Laws and the American Convention on Human Rights, OEA/Ser.L/V/II.88, Doc. 9 Rev. (1995).

[8] See, Report on the Situation of Human Rights in Mexico, OEA/Ser.L/V/II.100 Doc. 7 rev. 1, 24 September 1998; Report on the Situation of Human Rights in Colombia, OEA/Ser.L/II.102 Doc. 9 Rev. 1, 26 February 1996.

[9] Article 29.b of the Commission’s Regulations provides that:  “In urgent cases, when it becomes necessary to avoid irreparable damage to persons, the Commission may request that provisional measures be taken to avoid irreparable damage in cases where the denounced facts are true.”

[10] For example, on November 21, 1999, the Commission asked the Government of Peru to adopt precautionary measures on behalf of the journalist Guillermo Gonzáles Arica; these were processed under the aegis of Case No. 12.085. Similarly, on September 17, 1999, the IACHR asked the Government of Mexico to adopt precautionary measures to protect the life and person of the journalist Jesús Barraza Zavala.

[11] In general terms the Commission described the duties and mandates of the Office of the Rapporteur as follows: 1) preparing a report on the situation of freedom of expression in the Americas and presenting it to the Commission for its consideration and inclusion in the IACHR’s Annual Report to the OAS General Assembly; 2) preparing thematic reports; 3) compiling the information needed to prepare the reports; 4) organizing the promotional activities that the Commission entrusts to it, including but not limited to presenting documents at conferences and seminars on related issues, educating officials, professionals and students about the Commission’s work in this area, and preparing other promotional materials; 5) immediately reporting to the Commission situations that are so urgent as to warrant the Commission’s requesting  precautionary measures or filing with the Inter-American Court seeking provisional measures to avoid irreparable injury to human rights; 6) providing information to the Commission on individual cases related to freedom of expression.

[12] Declaration of Santiago, Second Summit of the Americas, April 18-19, 1998, Santiago, Chile, in “Official Documents of the Summits Process: from Miami to Santiago.”  Volume I, Office of Summit Follow-up, Organization of American States.

[13] Plan of Action, Second Summit of the Americas, April 18-19, 1998, Santiago, Chile.  In “Official Documents of the Summits Process: from Miami to Santiago.”  Volume I, Office of Summit Follow-up, Organization of American States.

[14] During his stay in Chile, the Rapporteur met with the following:  Sergio Elgueta, Chairman of the Committee on Legislation, the Constitution and Justice of the House of Deputies; Hernán Larraín, Chairman, Senate Committee on Legislation, the Constitution and Justice; Senator Mario Ríos, Vice President of the Senate; Deputy Carlos Montes, President, House of Deputies; Deputy Guillermo Ceroni, Chairman, Human Rights Committee, House of Deputies; Claudio Huepe, Minister Secretary General of Government; Juan Antonio Gómez, Under Secretary for Justice; Roberto Dávila, President of the Supreme Court; representatives of the Asociación Nacional de Prensa; representatives of the Journalists Association; representatives from the Public Interest Actions Program of the Universidad Diego Portales; representatives from Editorial Planeta, and others.

[15] See Press Communiqué from the Office of the Special Rapporteur for Freedom of Expression No. 11/99.

[16] See Press Communiqué from the Office of the Special Rapporteur for Freedom of Expression No. 19/99.