ASSESSMENT OF THE SITUATION OF FREEDOM OF EXPRESSION IN THE
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.
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.
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
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.
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.
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.”
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.
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.
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
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.”
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
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
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.
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
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:
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.
The Commission then added the following:
… 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.
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.”
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.
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.
The dual system of protection means, in practice, the imposition of civil
damages alone in cases where false statements made with “actual malice” are
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.”
This doctrine was enshrined in Vago
v. Ediciones La Urraca S.A.,
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
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:
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.
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
In this regard, the Commission has said:
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
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:
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.
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
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.
The Commission added the following:
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.
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
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.
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.”
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.
The Office of the Rapporteur is conducting a study
on habeas data and on the freedom to
access official information.
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.”
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.”
As to the scope of freedom of expression and information, the Court wrote
… 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
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.”
Guaranteeing access to official information helps to increase
transparency in government affairs and thus serves to reduce government
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.
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
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
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.
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:
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:
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.
Article 28 of Venezuela’s new Constitution provides that:
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
Article 200, subparagraph 3 of Peru’s
Constitution expressly recognizes the petition of habeas
corpus as a constitutional guarantee:
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:
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:
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
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.
The so-called right to truthful information has been
a subject of intense debate across the hemisphere in response to concern and
alarm brought on by the press being used as a sensationalist medium or to
disseminate news that is not always correct or truthful.
Because freedom of expression and information is so
vital to the normal functioning of a democratic society, international laws have
accorded it broad protection, with a few clearly stated limitations. This
ensures clarity regarding the limitations that are allowed and prevents
interpretations that could jeopardize the exercise of this very basic right.
Article 13 of the American Convention on Human Rights, Article 19 of the
Universal Declaration of Human Rights, and Article 19 of the International
Covenant of Civil and Political Rights clearly reflect the interest in according
this right broad protection. As can
be seen by reading these articles, no preconditions are placed on freedom of
expression and information. All these instruments simply refer to freedom of
expression, information and/or opinion.
Under Article 13 of the American Convention, the responsibilities
stemming from the exercise of the right to freedom of expression are ex
post fact. Prior censorship is
Any adjective used to qualify the information would limit the volume of
information protected by this right. For
example, the right to truthful information would not protect information that,
by contrast to truth, we would label erroneous.
Hence, any information that might be considered erroneous –a matter
that will be discussed at greater length later in this report– would not be
protected by that right. However, a correct interpretation of the international
norms, especially Article 13 of the Convention, compels us to conclude that the
right to information covers all information, including information that we might
First, it is impossible to determine, with absolute certainty, the
veracity of most information produce by the individuals.
By requiring truthful information, this principle is premised on the
notion that there is some single, indisputable truth. One must be careful here
to draw a distinction between facts that can be demonstrated, and value
judgments. In the latter case, the
information cannot be said to be either true or false, and cannot be
demonstrated with factual proof. The
veracity test might mean almost automatic censorship of any information that
cannot be proven, which would virtually do away with any political debate that
relies primarily on purely subjective ideas and opinions.
Even in those cases where the information concerns concrete facts that
could in all likelihood be factually proven, it is impossible to require the
veracity of the information, since any single fact could undoubtedly lend itself
to a number of markedly different interpretations.
In this regard, John Stuart Mill said that “Even in natural philosophy,
there is always some other explanation possible of the same facts (…)”.
It must be proven because the other theory cannot be the true one, and as
long as this is not shown and as long as we do not know how it was proved, we
cannot understand the bases of our opinion.
But when we turn to issues that are infinitely more complicated, morals,
religion, politics, social relations, and issues of life in general, three
quarters of the argument on any opinion discussed is to disprove the arguments
that favor any different opinion.
Assuming, for the sake of argument, that one could determine the truth of
everything, debate and the exchange of ideas are the best way to go after that
truth. Requiring from the outset
that only truth be told obviates any possibility of the debate needed to arrive
at that truth. Paradoxically, this
principle –which holds that only truth must be reported- also precludes or
impairs the exchange of ideas and opinions that are part of the quest for the
The possibility of penalties for reporting information that an open
debate might prove incorrect, will lead to self-censorship to avoid possible
penalties. The entire citizenry
will suffer, because they will not be able to have the truth produce by the
exchange of ideas. Absolute
certainty will frequently be impossible; but just the possibility of making
information public, sparks the debate that leads to the truth and the benefits
to all mankind.
The Inter-American Court of Human Rights raised this point in Advisory
Opinion OC-5/85 on compulsory membership in an association prescribed by law for
the practice of journalism:
two dimensions mentioned of the right to freedom of expression must be
guaranteed simultaneously. 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.
Thus, the effect that this principle has is precisely opposite to the one
that its proponents argue as the basis for its application.
In other words, the search for truth in information would be severely
hampered by inhibiting the free flow of information for fear of possible
penalties. The right to freedom of
information also protects all the information that we have labeled
“erroneous”. In any case, under international law and the most modern
jurisprudence, only information that is shown to be erroneous and produced with
“actual malice” could be penalized. Even
in that case, the sanction should be ex post facto, as information can never be subject to prior
The Office of the Rapporteur for Freedom of Expression would like to
stress the relationship that exists between the situation of women and its
impact on the right to freedom of expression and information.
The Commission has noted that the member States must endeavor to
eliminate any type of measure that discriminates against women leaving them less
than full and equal partners in their country’s political, economic, public
and social life. The American
Convention on Human Rights recognizes the right to equality and
nondiscrimination as pillars of strong and healthy democratic systems in the
Although the situation of women has undergone significant change, as they
have acquired rights and protections under domestic laws and international human
de facto and de jure discrimination against women has not stopped.
In its Report on the Status of Women in the Americas, the Inter-American
Commission on Human Rights urged the member States to amend or abolish all laws
that have the purpose or effect of discriminating against women, to work toward
eliminating the practices and structural barriers standing in the way of
women’s full assimilation into national life, and to allocate adequate
resources to achieve those ends.
Full exercise of the right to freedom of expression
and information is essential to ensuring that women’s human rights are
protected and respected. Full and unrestricted exercise of this right will allow
women to play a greater and more active role in denouncing abuses and in finding
solutions that mean greater respect for all their basic rights.
Silence is the best ally for perpetuating the abuses and inequalities
that have been the lot of the women across this hemisphere.
There are a number of reasons why women suffer
inequality in the hemisphere. This report will mention those that have a direct
bearing on exercise of the right to freedom of expression and information.
They are women’s inequality in educational opportunities, violence
against women and the need for women to become more politically involved.
The lack of equal access to education is a direct violation of women’s
right to seek and receive information. In
the more impoverished sectors of society, a woman’s role has been largely
confined to the home, thus diminishing the opportunity she has to receive an
education that would increase her chances of participating in public life and
seeking employment in a variety of areas.
Statistics from the Social Development Division of the Inter-American
Development Bank’s Sustainable Development Department reveal major
discrepancies between male and female literacy rates across the world: “In
1990, only 74 women knew how to read and write for each 100 men with those
skills. . . . Throughout the world, 77 million girls aged between 6 and 11
do not attend primary school, a level much higher than the corresponding figure
of 52 million for boys.”
Violence or fear of violence also curtails women’s freedom of
expression and information.
Intimidated by the violence, women frequently opt not to report incidents
of violence to the authorities, remain in seclusion and do not participate in
Estimates are that in this hemisphere, anywhere between 30 and 70 percent
of adult women with partners are subjected to psychological or physical abuse.
At the same time, in some States of the hemisphere adequate measures have
not been taken to protect women from violence and prevent it.
In some instances, cases of domestic violence reported to the police have
been treated as minor offenses, and attempts have been made to dissuade the
women from reporting future abuses on the grounds that these are private
matters. In some cases, the police
have refused to act on the complaints or to offer precautionary measures to
protect the victim.
Such actions and attitudes relegate women to a subordinate and degrading
role, silencing their ability to express themselves and leaving them helpless to
take action, thus perpetuating the circle of violence, abuse and discrimination.
It is by active political participation in the democratic institutions of
the State that freedom of expression and information plays a basic role in
bringing about the needed changes within institutions and society in general,
the changes that will improve the lot of women in the hemisphere.
This is why it is crucial that greater political participation for women
As long as women do not play an equal role in political life, democratic,
pluralistic societies will never prosper and intolerance and discrimination will
only worsen. Women’s inclusion in communication, decision-making and
development processes is crucial if their needs, opinions and interests are to
be factored into policies and decisions. Women’s
access to greater political participation in places where decisions are made
will further respect for other basic rights, thereby ensuring the advocacy and
defense of policies, laws and practices that protect the rights and guarantees
that affect them. 
As the Commission pointed out in its Report on the
Status of Women in the Americas, there is a sense in the region that for true
democracy, women must have a greater role in decision making, and that access to
a country’s political life does not end with nondiscriminatory exercise of the
right of suffrage.
The member States are urged to encourage women’s participation in political
life and decision-making in the public and private arenas.
Unless and until all members of society participate fully, freedom of
expression and information will be in jeopardy.
IACHR, Annual Report 1998, Report of the Rapporteur for Freedom of
Expression, 16 April 1999, p. 50.
IACHR, Report No. 50/99, Case No. 11,739 (Mexico).
The Inter-American Court of Human Rights has held that:
“The State is obligated to investigate every situation involving a
violation of the rights protected by the Convention.
If the State apparatus acts in such a way that the violation goes
unpunished and the victim’s full enjoyment of such rights is not restored
as soon as possible, the State has failed to comply with its duty to ensure
the free and full exercise of those rights to the persons within its
jurisdiction. The same is true
when the State allows private persons or groups to act freely and with
impunity to the detriment of the rights recognized by the Convention.”
(Inter-American Court of Human Rights, Velásquez Rodríguez Case,
Judgment of July 29, 1988, para. 176).
The report of the Rapporteur for Freedom of Expression identified 16
countries were such desacato
legislation is in force: Bolivia, Brazil, Chile, Costa Rica, Cuba, the
Dominican Republic, Ecuador, El Salvador, Honduras, Mexico, Nicaragua,
Panama, Peru, Uruguay, and
Venezuela. IACHR, Annual Report 1998, Report of the Office of the Rapporteur
for Freedom of Expression, April 16, 1999, pp. 40-44.
See Article 2 of the American Convention on Human Rights.
In this regard, the Argentine constitutional lawyer Gregorio Badeni has
It is true that freedom of the press, like the other
constitutional freedoms, is not absolute in terms of the consequences that
follow from the exercise of that freedom.
However, when freedom of the press operates on the institutional or
strategic phase, special rules must be applied to determine legal liability,
rules different from those acceptable on the personal phase.
Not in order to grant some privilege to someone who exercises that
freedom, but in order to preserve the survival of a constitutional system of
Badeni, G. Libertad
de Prensa [Freedom of the Press], Editorial Abeledo Perrot, Buenos Aires
1997, p. 386 (unofficial translation).
Inter-American Court of Human Rights, Compulsory Membership in an
Association Prescribed by Law for the Practice of Journalism, Advisory
Opinion OC-5/85, Series A No. 5, paragraph 70.
One justice of the United States Supreme Court wrote that:
This nation, I suspect, can live
in peace without libel suits based on public discussions of public affairs
and public officials. But I
doubt that a country can live in freedom where its people can be made to
suffer physically or financially for criticizing their government, its
actions, or its officials. “For
a representative democracy ceases to exist the moment that the public
functionaries are by any means absolved from their responsibility to their
constituents; and this happens whenever the constituent can be restrained in
any manner from speaking, writing, or publishing his opinions upon any
public measure, or upon the conduct of those who may advise or execute
The New York Times Co. v.
Sullivan, 376 US 255, 84 S.Ct. 710 (1964).
Op. Cit., 3, p. 207.
Op. Cit., 3, pp. 207-208.
Lingens v. Austria, European Court of Human Rights, Res. No. 09815/82, para.
The Rapporteur for Freedom of Expression has repeatedly underscored the need
to repeal the desacato laws that
exist in this hemisphere’s legal systems.
The Office of the Special Rapporteur decided to use the expression actual
malice to refer to this doctrine based on the fact that it is commonly known
in those terms in the Americas.
The New York Times v. Sullivan, 376 US 255, 84 S. Ct. 710 (1964). Although
the doctrine of actual malice has been introduced in both civil and criminal
proceedings in different countries around the hemisphere, it should be noted
that when the victim of slander is a private citizen, the normal standard of
negligence is applied to determine the liability of the person responsible
for false information.
The majority’s main argument for the principle of “actual malice” was
the importance of freedom of expression and information to the functioning
of a democratic society.
general proposition that freedom of expression upon public questions is
secured by the First Amendment has long been settled by our decisions.
The constitutional safeguard, we have said, “was fashioned to
assure unfettered interchange of ideas for the bringing about of political
and social changes desired by the people.” Roth v. United States, 354
U.S. 476, 484. “The maintenance of the opportunity for free political
discussion to the end that government may be responsive to the will of the
people and that changes may be obtained by lawful means, an opportunity
essential to the security of the Republic, is a fundamental principle of our
constitutional system.” Stromberg
v. California, 283 U.S. 359, 369.
“[I]t is a prized American privilege to speak one’s mind,
although not always with perfect good taste, on all public institutions,”
Bridges v. California, 314 U.S. 252, 270, and this opportunity is to
be afforded for “vigorous advocacy” no less than “abstract
discussion.” N.A.A.C.P. v. Button, 371 U.S. 415, 429 [376
U.S. 254, 270].
the Court affirmed the “profound
national commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open, and that it may well include vehement,
caustic, and sometimes unpleasantly sharp attacks on government and public
officials.” It also wrote
that “Neither factual error nor defamatory content suffices to remove the
constitutional shield from criticism of official conduct [and] the
combination of the two elements is no less inadequate.”
one of the concurring opinions went even further and stated that:
“[t]he First and Fourteenth Amendments to the Constitution afford
to the citizen and to the press an absolute, unconditional privilege to
criticize official conduct despite the harm which may flow from excesses and
See Badeni, G., Libertad de Prensa, Editorial Abeledo Perrot, Buenos
Aires, 1997, pp. 414-417.
Pellet, A., La Libertad de Expresión, Editorial Abeledo Perrot,
Buenos Aires, 1993, p. 189.
Op. Cit., 3, p. 208.
The reference here is specifically to crimes of libel.
Op. Cit., 3, p. 208-209.
In this sense, much of the report on desacato
laws is applicable to laws of this type.
In some respects desacato
laws, understood as laws that punish speech that is offensive, insulting or
threatening to a public official in the performance of his official
functions, are similar to slander and libel laws when the person whose honor
is alleged to have been “offended” is a public official, public figure,
or private person who has voluntarily become involved in public issues. Op. Cit., 3, p.
Op. Cit., 3, p. 211.
 Op. Cit., 3, p. 211.
Bianchi, E. et al., El Derecho a la
Libre Expresión, Editorial Planeta, 1997, p. 97.
The right to access information held by the government (public information)
and habeas data both follow from
the right to freedom of information. While
the two are similar in that they have a similar objective, the information
to which they grant access serves a clearly different function.
The information in the first case is public in nature, and the right
to that information is informed by the need to make the democratic system
work better and scrutinize government.
Habeas data, however,
provides one the opportunity to request information housed in both
government data banks and private data banks.
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 of
November 13, 1985, para. 70.
Ibid., para. 32.
Ibid., para. 30.
Pierini, A. et al., Habeas Data,
Editorial Universidad, Buenos Aires 1999, p. 21.
Medina, C, Sistema Jurídico y
Derechos Humanos, Escuela de Derecho, Universidad Diego Portales, 1996. Cited in Rodríguez, D. et
al., La dimensión internacional
de los Derechos Humanos, Inter-American Development Bank – American
University, Washington, D.C., 1999, p. 305.
Some of the procedures that would ensure compliance with the duty to provide
information would be: to penalize public officials who refuse to supply
information without cause; to impose fines on the State for failing to
comply with its obligation; and to make provision for
rapid judicial review through a petition of amparo.
Cámara Nacional en lo Civil, Sala B, February 14, 1997, “Varksberg,
Hermann”, LL, t. 1997-C p. 946, Ibid
38, p. 204.
See Annex Nº 6
The concept of truthful information is used here because it has received so
much attention of late. However,
within this concept we include others, such as the concepts of timely,
objective, ample, thorough information, and so on.
Article 13 of the American Convention states the following: “Notwithstanding the provisions of paragraph 2 above,
public entertainments may be subject by law to prior censorship for the sole
purpose of regulating access to them for the moral protection of childhood
this regard, in The New York Times v.
Sullivan case, the United States Supreme Court held the following:
The state rule of law is not saved by its allowance of the
defense of truth. A defense for
erroneous statements honestly made is no less essential here than was the
requirement of proof of guilty knowledge which, in Smith v. California, 361
U.S. 147, we held indispensable to a valid conviction of a bookseller
for possessing obscene writings for sale.
We said: “For if the
bookseller is criminally liable without knowledge of the contents, … he
will tend to restrict the books he sells to those he has inspected; and thus
the State will have imposed a restriction upon the distribution of
constitutionally protected as well as obscene literature… And the
bookseller’s burden would become the public’s burden, for by restricting
him the public’s access to reading matter would be restricted… [H]is
timidity in the face of absolute criminal liability, thus would tend to
restrict the public’s access to forms of the printed word which the State
could not constitutionally [376 U.S. 254, 279] suppress directly.
The bookseller’s self-censorship, compelled by the State, would be
a censorship affecting the whole public, hardly less virulent for being
privately administered. Through
it, the distribution of all books, both obscene and not obscene, would be
impeded.” A rule compelling the critic of official conduct to guarantee
the truth of all his factual assertions –and to do so on pain of libel
judgments virtually unlimited in amount- leads to a comparable
The analysis we make of the concept of “erroneous” information and its
incompatibility with international norms would no doubt apply to all other
adjectives used to qualify information, such as out-of-date, incomplete, and
Mill, John Stuart, On Liberty and
Other Writings, Chapter 2, Of the Liberty of Thought and Discussion,
Cambridge University Press, Cambridge, 1997, p. 38.
In his On Liberty and Other Writings,
John Stuart Mill wrote at length on the importance of unfettered and
unqualified freedom of opinion and expression.
Mill mentions three main reasons why divergent arguments and opinions
are essential for freedom of expression and opinion.
First, if an opinion is true, there is no better way to consolidate
and propagate it than to juxtapose it to error.
If the opinion is wrong, the contrast with the truth will clearly
point up the error, to the good of all society.
Finally, the most common case is when conflicting doctrines share the
truth between them and a nonconforming opinion is needed to supply the
Mill’s observations are so important, clearly stated and current, the
Rapporteur cites some of the passages that are particularly relevant for
purposes of pointing up the problem with the concept of truthful
the peculiar evil of silencing the expression of an opinion is, that it is
robbing the human race; posterity as well as the existing generation; those
who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity
of exchanging error for truth: if wrong, they lose, what is almost as great
a benefit, the clearer perception and livelier impression of truth, produced
by its collision with error.
we were never to act on our opinions, because those opinions may be wrong,
we should leave all our interests uncared for, and all our duties
must be discussion, to show how experience is to be interpreted.
Wrong opinions and practices gradually yield to fact and argument:
but the facts and arguments, to produce any effect on the mind, must be
brought before it. Very few
facts are able to tell their own story, without comments to bring out their
See 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 of
November 13, 1985. Series A No.
5, para. 33.
See IACHR, Basic Documents Pertaining to Human Rights in the Inter-American
System, OEA/Ser.L/V/II92 rev.3, May 3, 1996.
Article 3(k) of the Charter of the Organization of American States
upholds as one of its principles “the fundamental rights of the
individual, without distinction as to race, nationality, creed or sex.”
That document gives a general idea of the system and includes texts of
instruments, norms and statutes related to human rights.
See also the Convention on the Elimination of All Forms of Violence
against Women, December 18, 1979, 19 I.L.M. 33 (1980).
The civil codes of some countries still have laws on the books that deny a
woman’s right to administer conjugal assets, that limit her parental
authority over her children, and that authorize a spouse to prohibit his
wife from obtaining employment outside the home.
(See the María Eugenia Morales de Sierra Case with the
Inter-American Commission on Human Rights, March 1998).
On March 6, 1998, the Inter-American Commission on Human Rights named one of
its members, Dean Claudio Grossman, to serve as Special Rapporteur for
women’s rights. The Report of
the Inter-American Commission on Human Rights on the Status of Women in the
Americas, adopted March 6, 1998.
See Report of the Inter-American Commission on Human Rights on the Status of
Women in the Americas”, OEA/Ser.L/V/II.100 of October 17, 1998, p. 16.
Other practices also affect women’s freedom of expression. This report
concentrates on these three because they are deemed to be the ones with the
greatest impact on free expression. Nevertheless, the discrimination against
women in the labor area also affects freedom of expression and information.
Discriminatory policies on the part of businesses and corporations
are tolerated in some countries, and these policies have the effect of
limiting women’s chances for an equal role in public life and give them
less of a voice in opinions and decisions.
Statistics developed by the Division of Social Development of the
Inter-American Development Bank’s Sustainable Development Department
reveal significant discrepancies between men and women with regard to
literacy levels worldwide: “Global
literacy statistics show that in 1990, there were only 74 women for every
100 literate men. …. Schooling statistics show a similar trend worldwide,
77 million girls of primary school age (6-11 years old) are out of school,
compared with 52 million boys.” See,
Mayra Buvinic, Women in poverty: a global problem.
Washington, D.C,, July 1998-No. WID-101.
In December 1993, the United Nations General Assembly approved the
Declaration on the Elimination of Violence against Women.
Article 1 defines violence against women as “any act of
gender-based violence that results in, or is likely to result in, physical,
sexual or psychological harm or suffering to women, including threats of
such acts, coercion or arbitrary deprivation of liberty, whether occurring
in public or in private life.”
The Pan American Health Organization emphasized that according to studies
done in a number of Latin American countries, estimates are that only
between 15 and 20 percent of the incidents of
intrafamily violence against adult women are reported.
CEFEMINA, 1994. Mujeres
Hacia del 2000: Deteniendo la
Violencia, San José, Costa Rica: Programa
“Mujer No Estás Sola”CEFEMINA:
in La ruta crítica que siguen
las mujeres afectada por la violencia intrafamiliar, Pan American Health
Organization, Research Protocol, p. 5 (Washington, 1998).
Inter-American Development Bank. Sustainable Development Department.
Publication: Violence in Latin America and the Caribbean: A Framework, March
At the regional level, in Article 5 of the Convention of Belém do Pará”
or the Inter-American Convention on the Prevention, Punishment and
Eradication of Violence Against Women, adopted by the General Assembly of
the Organization of American States on July 9, 1994, the States recognize
that violence against women prevents and nullifies the exercise of their
A statistical study into worldwide female participation in parliaments
conducted by the Inter-Parliamentary Union revealed that women occupy only
15.3% of the available seats in the upper and lower chambers of the
congresses of the Americas. See http://www.ipu.org/wmn-e/world.htm.
IACHR, Report on the Status of Women in the Americas, published October 13,