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CHAPTER VI
RIGHT TO FREEDOM OF EXPRESSION AND THOUGHT
A. Introduction: The right of free expression and the rule of law
365. The right of free expression is essential for the development and strengthening of democracy and for the full enjoyment of human rights. Full recognition of freedom of expression offers a fundamental guarantee for ensuring the rule of law and democratic institutions. This has been acknowledged on many occasions by different sectors of civil society, international organizations, and most nations.[170]
366. The American Convention on Human Rights, Article 13, enshrines the right of free expression in the following terms:
1. 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.
2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:
a. respect for the rights or reputations of others; or,
b. the protection of national security, public order, or public health or morals.
3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.
4. 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 and adolescence.
5. Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.
367. Protecting the right to freely express ideas is fundamental in ensuring full currency for the other rights: without freedom of expression and information, full democracy cannot exist; and when democracy is absent, the history of the hemisphere has shown that rights ranging from the right to life to that of property are seriously endangered. Clearly, there is a direct relationship between the exercise of free expression and opinion and democratic existence.
368. The Inter-American Court has consistently emphasized the importance of this right, ruling that:
Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. It is also a conditio sine qua non for the development of political parties, trade unions, scientific and cultural societies and, in general, those who wish to influence the public. 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.[171]
369. Freedom of expression covers the right of all individuals to seek, receive, and impart information and ideas of all kinds. Thus, this right has a dual dimension: it is both individual and social. In this regard, the Court has said that this dual aspect:
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.[172]
370. The Inter-American Commission on Human Rights asked the office of the Special Rapporteur for Freedom of Expression (“the Rapporteur’s office”)[173] to prepare this chapter. The Rapporteur’s office did so, chiefly on the basis of the information gathered during the on-site visit, together with other information and complaints received subsequently. The Commission approved the text that was submitted and decided to incorporate it into this Report.
371. The IACHR has paid particular attention to the state of Venezuela’s freedom of expression in the annual reports submitted by the Rapporteur’s office and approved by the Commission, and in the press releases that it has from time to time issued in connection with this matter.[174] The IACHR is concerned because the information gathered during the May 2002 visit indicates that many of the comments made by the Special Rapporteur for Freedom of Expression remain valid as of the drafting of this report.
372. The IACHR and the Rapporteur’s office have noted that much of the Venezuelan media is critical of the government. However, for journalists, the consequences of expressing such opinions include acts of intimidation, some serious. The uninterrupted continuation of those actions could restrict free speech by fostering a climate unfavorable to the pursuit of journalistic endeavors. The IACHR understands that since criticisms of the government are in fact made, it is difficult to speak of widespread self-censorship within the mass media; however, the emergence of potential self-censorship on the part of reporters can, in some cases, be seen, with journalists required to change the tasks they undertake[175]. The protection of free speech cannot be measured solely by the absence of censorship, newspaper shutdowns, or arbitrary arrests of those who freely express their ideas; it also entails the existence of a climate of security and guarantees for communication workers as they discharge their function of informing the public.
373. In addition, the Commission notes the bias found in some Venezuelan media outlets, which reflects the extreme polarization that characterizes the country. As one example of this, at the end of its visit the Commission stated that:
The IACHR has been concerned by the scant information, or at times total lack of information, available to Venezuelan society during the days of the institutional crisis of April. Although there may be any number of justifications to explain this lack of information, to the extent that the suppression of information resulted from politically-motivated editorial decisions, this should be the subject of an essential process of reflection by the Venezuelan media about their role at that moment.[176]
374. In this regard, the IACHR defends the right to follow any editorial line; this does not imply, however, that it shares the position chosen or that it does not regret the loss of objectivity.
375. In Venezuela, the IACHR and the Rapporteur’s office have identified three areas related to freedom of expression that warrant particular attention: The first has to do with harassment, attacks, and threats made against media workers, particularly those that work in public spaces, and the failure to investigate those incidents. The second involves the existence of court decisions and draft legislation that, if enacted, could adversely affect the Venezuelan people’s full enjoyment of freedom of expression. The third relates to the administrative proceedings initiated by CONATEL and the Ministry of Infrastructure against media outlets in connection with the programming content, applying legal provisions that are in breach of the inter-American system.
376. The following sections will deal with those areas which, for the purposes of this report, are of particular relevance with respect to freedom of expression in Venezuela. Attention is also paid to other important issues, such as media ethics, access to information, and the requirements of truthful reporting.
B. Threats, harassment, and attacks against journalists and the media
377. The uninterrupted continuation of acts of aggression and intimidation directed at media workers in Venezuela reflects the deepening of the institutional and political conflict that has affected the country over the past two years. The legitimate endeavors of media workers in reporting on different situations that affect the country’s social, cultural, and economic life and, in particular, the political situation and human rights, have encouraged certain sectors to attempt, in different ways, to silence them.
378. The IACHR and the Rapporteur’s office have noted the repeated occurrence of verbal and physical attacks in recent years. There has been no end to the attacks and threats made against media workers, particularly those covering events, political gatherings, and activities relating to the security forces. Before, during, and after its on-site visit, the IACHR was told that reporters working in public spaces were the targets of attacks and harassment. The prevailing general situation in Venezuela has fueled a climate of constant aggression and threats against freedom of expression and, in particular, against the physical integrity of reporters, camera operators, photographers, and other media workers. The recorded incidents range from threats and personal injuries to violations of the right to life, such as the murder of Mr. Jorge Tortosa, a press photographer with Diario 2001, during the events of April 11, 2002.
379. A large number of cases dealing with threats and other forms of harassment against journalists have been lodged with the IACHR. On several occasions since late 2001, therefore, the IACHR has requested the adoption of precautionary measures to protect different media workers and media outlets. These include workers and/or executives with the following media companies: El Nacional, El Universal, RCTV, Globovisión, Así es la Noticia, and La Razón. As an example, the IACHR offers the following extracts from the information it has received regarding attacks on reporters: On April 11, Hugo Rafael Sánchez Uzcátegui, an RCTV correspondent in Zulia State, received numerous intimidating telephone calls, some threatening him with death, while he was covering the public gathering in front of the PDVSA building in Maracaibo. In the early morning of Friday 12, after attending a press conference called by the military high command in Zulia State at the headquarters of the 1st Infantry Division, he was persistently followed by an unidentified automobile. On April 11, members and/or supporters of the government party, the MVR, threw stones at reporter Edward Rodríguez and cameraman Hernán Terán, who were in the metropolitan area of Puerto La Cruz – Barcelona, Anzoátegui State, covering a march by the Workers’ Federation of Anzoátegui State. On April 13 they were again attacked while attempting to report on protests and looting, and violent threats were made against them.
380. In late 2002 and early 2003, the Commission received information about attacks on the following media workers: José Rodríguez of the daily El Impulso; Martín Urteaga of the daily El Informador; Miguel López of Telecentro; Clara Reverol and Gusravo Escalona of Televen; Cristián Rodríguez of Promar TV; Yleana Brett of Diario Hoy; and Julio Torres of Venevisión. All these incidents occurred while they were covering a demonstration of government supporters and opponents in the city of Barquisimeto, Lara State. In Caracas, Fernando Malavé of Diario 2001 and José Antonio Dávila of CMT. In the same city, reports indicate that the journalists Luis Alfonso Fernández of Venevisión and Aymar Lorenzo de Globovisión were beaten by police officers. Mauricio Cabal, cameraman Rubén Brito, and assistant Marcos Martínez of Venevisión were threatened at the entrance to the state-owned oil company Petróleos de Venezuela (PDVSA) in the city of Anaco, Anzoátegui State, and their vehicle was damaged. Verioska Velasco, cameraman Luis Mata, and assistant Alfonso Vásquez of Promar Televisión, and cameraman Samuel Sotomayor of RCTV were attacked in the city of Barquisimeto. On January 12, Héctor Castillo, a photographer with the Caracas evening paper El Mundo, was injured by a baton round while he was covering clashes between members of the armed forces and participants in an opposition march that was attempting to reach the Los Próceres monument, near the military base known as Tiuna Fort.
381. Mention could also be made of a number of examples that serve to indicate the continued perpetration of attacks against media workers: On January 7, 2003, a van belonging to Puerto Visión from Puerto Cabello, Carabobo State, was stoned and beaten with iron bars while it was carrying a team of reporters led by Humberto Ambrosino. On January 9, a vehicle carrying reporters from El Correo del Canoní was attacked in Puerto Ordaz, Bolívar State. On January 14, hooded individuals on motorcycles attempted to set fire to a vehicle belonging to the Televen network. In light of this, the IACHR has, on several occasions since late 2001, requested the adoption of precautionary measures to protect different media workers and media outlets. These include workers and/or executives with the following media concerns: El Nacional, El Universal, RCTV, Globovisión, Así es la Noticia, and La Razón.[177]
382. Another case worthy of note is that of the Ecuadorian journalist Mauricio Muñoz Amaya, who was hit by gunfire on November 4, 2002, in the vicinity of the National Electoral Council (CNE) during a Democratic Coordinator march carrying more than two million citizens’ signatures calling for a referendum to recall President Hugo Chávez. That same day, November 4, Héctor Castillo, a journalist-cum-photographer attached to the daily El Mundo, was beaten up by government supporters during the same event. On September 22, unidentified individuals shot firearms at the home of Carlos Barrios, the director of radio station Astro 97.7.
383. During 2002, four bomb attacks were carried out in the vicinity of the premises of the broadcaster Globovisión. The last incident took place on November 17, 2002. Later, on January 31, 2002, a bomb was thrown in front of the offices of Así es la Noticia; and, on October 19, an explosive device detonated at the premises of Unión Radio in Chacao municipality, Caracas.
384. The IACHR has also noted that sectors of the government are following a line of discourse tending toward the professional discrediting of journalists and the filing of administrative procedures that could lead to the suspension or cancellation of broadcasting licenses and/or permits.
385. To summarize, the situation described above has the effect of intimidating media workers: many are afraid to identify themselves as reporters out of fear of possible reprisals.
386. According to the ninth principle of the IACHR’s Declaration of Principles on Freedom of Expression,[178] threats and attacks against social communicators violate the fundamental rights of individuals and strongly restrict freedom of expression. Consequently, irrespective of the actions of the media that the government has repeatedly denounced, attacks on media workers and facilities are inadmissible and unjustified. The IACHR again points out that under Article 1.1 of the American Convention, not only do the states parties agree to respect the rights and freedoms it recognizes, they also undertake to guarantee their free and full enjoyment by all individuals subject to their jurisdiction. With respect to “ensuring” the free and full exercise of the Convention’s rights, the Court has ruled that this obligation implies:
The duty of the States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation.[179]
387. It is not only the protection bodies of the inter-American system have ruled that the pursuit of journalistic endeavors must be free of dangerous consequences; in the Plan of Action issued by the Third Summit of the Americas, the Heads of State and Government said that:
388. In light of the vulnerable situation faced by media workers during 2002, the IACHR asked the Venezuelan State to adopt precautionary measures on eight occasions, many of which were extended in order to protect the lives, persons, and freedom of expression of journalists, camera operators, and photographers who had been attacked. The Inter-American Court of Human Rights was also asked to issue provisional measures. The Court, in a resolution issued last February 21, reported that the State had not complied. The Commission noted its concern at this failure to comply with the provisional measures granted by the Court and the precautionary measures requested by the Commission. In July 2003 the IACHR once again decided to ask the Court to extend provisional measures to protect two journalists. The IACHR again states that complying with its decisions and those of the Court is essential if the human rights of journalists in Venezuela are to be guaranteed and protected.
389. In addition to this, the IACHR and the Rapporteur’s office have been informed that these attacks on media workers and facilities have not been the subject of complete, exhaustive investigations.[180] Impunity in investigations helps create a climate of intimidation and harassment for full enjoyment of free speech in Venezuela.
390. In this regard, the Inter-American Court of Human Rights has ruled that:
391. The IACHR maintains that the Venezuelan State’s failure to carry out an effective and complete investigation of these attacks on social communicators and its failure to impose criminal punishments on the planners and perpetrators thereof is particularly grave on account of its impact on society. Crimes of this nature frighten not only other media workers; they also intimidate the citizenry in general by making them afraid to report abuses, violations, and crimes of all kinds. The effect can only be avoided through the decisive action of states in publicly condemning such acts of aggression against media workers and punishing the perpetrators. In this way the State can send society a strong and direct message indicating that there will be no tolerance for those who engage in such serious violations of the right of free expression.[181]
392. The IACHR and the Rapporteur’s office have on several occasions asked the highest authorities to condemn these acts.[182] This occurred after President Hugo Chávez Frías made certain speeches against the media, which could have been interpreted by his followers as calling for aggression against the press. The IACHR, in requesting the first precautionary measures to protect journalists, was able to note that on occasions, President Chávez’s speeches were followed by acts of physical violence. President Chávez, like all the inhabitants of Venezuela, has the right to express himself freely and to offer his opinions about those he believes to be his opponents. Nevertheless, his speeches should take care to avoid being interpreted as incitations to violence. Consequently, the IACHR and the Rapporteur’s office are pleased to note the statement made by President Hugo Chávez Frías in April 2003, in which he called for “journalists to be respected and to be given the treatment they deserve.”[183] Given the mood described in this report, the IACHR believes that statements of this kind must be neither isolated nor sporadic; on the contrary, they should be offered by the highest echelons of the government on a repeated basis.
393. Finally, the IACHR and the Rapporteur’s office reaffirm that it is the responsibility of the State, as a function of its duty of ensuring the human rights as described above, to extend protection to media workers through energetic actions aimed at disarming those sectors of the civil population that operate outside the law and that might be involved in these incidents.
C. Comments on the legislative bill and the decisions of the Supreme Court of Justice that could violate freedom of expression
1. Draft legislation on social responsibility in radio and television
394. Since at least November 2002,[184] the IACHR and the Rapporteur’s office[185] have been aware of the existence of a draft Law on Social Responsibility in Radio and Television, intended to regulate the activities of those media in Venezuela.[186] It should be noted that this draft is still being debated by the National Assembly and expressions of concern in connection with it have been made by both the IACHR and the Rapporteur’s office.[187]
395. The IACHR and the Rapporteur’s office note that the draft was approved on first discussion by the Legislative Assembly. Later, on May 7, 2003, they were informed that the Legislative Assembly’s science, technology, and media committee had approved a new version of the draft Law on Social Responsibility in Radio and Television that would be the subject of the second discussion. The amended bill contains 36 articles, which means that its extent was substantially reduced.
396. The articles deleted included No. 115.11[188] which, in the original draft, established punishments for desacato contempt and for contents that promoted disrespect toward the authorities. Also omitted[189] is the creation of the “National Radio and Television Institute,” under state control and with heavy influence from the executive branch in its conformation; in light of its powers, it could have been used to control information unfavorable to the government.[190] For example, the President of the Board, who would have been appointed by the President of the Republic, could order precautionary measures in the same administrative procedures as he had initiated.[191]
397. These modifications are positive but inadequate: as the IACHR and the Rapporteur’s office understand, the draft under discussion still contains provisions that could undermine the freedom of expression of the Venezuelan people.[192]
398. The IACHR points out that although regulating radio and television programs is compatible with the American Convention when carried out in accordance with the strict parameters of Article 13, the new bill being discussed still contains a series of restrictions, definitions, and regulations applicable to the content of radio and television programs that, if enforced, could violate the Convention’s precepts. Moreover, the sanctions provided for are so stiff that, in certain cases, they could lead to self-censorship on the part of the media, which would seriously undermine enjoyment of the right in question.
399. The restrictions in terms of truthfulness, impartiality, and timeliness[193] that the bill would impose on information run contrary to the jurisprudence of the inter-American system for the protection of human rights. The Inter-American Court has ruled 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.”[194] The IACHR offers a similar interpretation in the seventh principle of its Declaration of Principles on Freedom of Expression.
400. Breaches of the concepts set forth above (truthfulness, impartiality, and timeliness) can lead to repercussions. Consequently, in light of the international standards that exist for protecting freedom of expression, it is a source of concern that laws such as this could encourage self-censorship, the result of journalists fearing punishments for breaches of conditions that have been ruled inadmissible by the inter-American system’s bodies. The IACHR also believes that a breach of the truthfulness requirement cannot be a reason for imposing subsequent punishment; this is because of the need to distinguish information from opinion, and public from private figures, as will be explained below.
401. The bill still imposes restrictions on the content of radio and television programs, and this, in conjunction with the vague phrasing used in several of its provisions, could also lead to self-censorship by the media in a fashion similar to that described above. For example, the bill would prohibit the transmission, during a protected timeslot, of “commonly used images and sounds that, while not obscene… are crude in nature” (Article 5.1).[195] The extreme subjectivity of this classification, together with the fact that the bill offers no parameters for interpreting these labels and, most particularly, the severity of the punishments potentially applicable to those who commit infractions, forces the IACHR and the Rapporteur’s office to conclude that media self-censorship would be the certain outcome if the initiative currently before the National Assembly were enacted.[196]
402. Equally worrisome is the requirement placed on the media to reveal their sources, even in the situations set forth in Article 4 of the bill,[197] given the poor clarity of the phrasing and the fact that revealing sources is the rule and not the exception. The selection of information sources is part of the ethics and responsibilities of journalism, which can in no circumstance be subjected to state scrutiny. The Commission holds that the right to protect confidential sources is an ethical duty inherent to journalistic responsibility. Furthermore, the IACHR states that this issue also involves the interests of the sources, in the sense of being able to rely on confidentiality – when, for example, information is given to the journalist on such conditions. The IACHR holds that revealing sources of information has a negative and intimidating effect on journalistic investigations: seeing that journalists are obliged to reveal the identities of sources who provide them with information in confidence or during the course of an investigation, future sources of information will be less willing to assist reporters. The basic principle on which the right of confidentiality stands is that in their work to provide the public with information, journalists perform an important public service by gathering together and disseminating information that would otherwise not be known. Professional confidentiality has to do with the granting of legal guarantees to ensure anonymity and to avoid potential reprisals that could arise from the dissemination of certain information. Confidentiality is therefore an essential element in journalism and in the task of reporting on matters of public interest with which society has entrusted its journalists.[198]
403. The European Court of Human Rights has recognized the importance of the protection of journalistic sources as “one of the basic conditions for press freedom.”[199] The European Court ruled that:
Without such protection, sources may be deterred from assisting the press in informing the public in matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest.[200]
404. The Inter-American Commission on Human Rights also indicated, in adopting the Declaration of Principles on Freedom of Expression, that protecting sources is a part of the general guarantee of press freedoms.[201] It should be emphasized that this right does not constitute a duty, as social communicators are not obliged to protect the confidentiality of their sources, except for reasons of professional conduct and ethics.[202]
405. These are some of the bill’s provisions that could undermine free expression in Venezuela. Given that the bill is still being discussed, however, the IACHR and the Rapporteur’s office hope that the debate in the Legislative Assembly will pay attention to the proposed legislation’s compatibility with the State’s international obligations with respect to freedom of expression.
2. Decision of the Supreme Court of Justice of June 12, 2001 (“Judgment 1,013”)
406. At its 118th regular session, in its Report No. 92/03, the Commission declared petition 0453/01, Elías Santana et al., to be inadmissible. In that report, the Commission instructed the IACHR’s Special Rapporteur for Freedom of Expression to prepare a special report on Judgment 1,013 and the inter-American system’s human rights protection standards applicable to freedom of expression under the American Convention and the Declaration of Principles on Freedom of Expression. Article 41 of the American Convention empowers the Commission to prepare such studies or reports as it considers advisable and to serve recommendations on OAS member states with respect to the adoption of measures in favor of human rights within the framework of their domestic laws and constitutional provisions. This instruction was a partial reflection of the importance of the debate surrounding the content of the judgment and of the legitimate interest shown by society in general and the international community about the possible impact on freedom of expression that would follow if the Court’s interpretations were applied by other judicial bodies.
407. Judgment 1,013 was analyzed by the IACHR in an individual petition[203] lodged with it by Elías Santana, Cecilia Sosa, the Venezuelan Press Bloc, and others. The petitioners claimed that the State had violated the right to a fair trial, freedom of expression, right of reply, right to effective remedies, right to participate in government and to equal access to public office, right to equality before the law, right of equal protection, right to property, the scope of restrictions, standards of interpretation, all in conjunction with the State’s obligation of ensuring those rights and implementing domestic legal effects enshrined in Articles 8, 13, 14, 25, 23(a)(c), 24, 21.1, 30, 29(a)(b), 1, and 2 of the American Convention on Human Rights.
408. The IACHR and the Rapporteur’s office note the controversy that this judgment created[204] since the opinions on which the sentence was based were to be, in the Chamber’s view, “binding doctrine for the interpretation of Articles 57 and 58 of the Constitution.” This claim is not merely theoretical, since it has already been used in that way by the Court, as can be seen in the sentence described in the following paragraph.[205] Irrespective of the inadmissibility decision issued by the IACHR, and in compliance with the instruction served on the Rapporteur’s office, the following paragraphs offer a series of thoughts on this matter.
409. First of all, the inter-American system’s international instruments for safeguarding freedom of expression clearly protect the right of all individuals to seek and receive information.[206]
410. In turn, Article 14.1 of the Convention, dealing with the right of reply, provides that:
Anyone injured by inaccurate or offensive statements or ideas disseminated to the public in general by a legally regulated medium of communication has the right to reply or to make a correction using the same communications outlet, under such conditions as the law may establish.
411. One of the basic notions behind these instruments and the rights they enshrine is the full enjoyment, on a nondiscriminatory basis, of the right of free expression and the right of reply. In this respect, provisions that discriminate against individuals and keep them from fully participating in their countries’ political, economic, public, and social undertakings are inadmissible. The American Convention on Human Rights protects the right of nondiscrimination as a basic pillar in strengthening and upholding the hemisphere’s democratic systems.[207] 412. The exclusion of any sector of society from exercising the rights guaranteed by the Convention hinders the broad development of democratic, pluralistic societies and exacerbates intolerance and discrimination. In the case of María Eugenia Morales de Sierra from Guatemala, the Commission said that “a norm that deprives a portion of the population of some of its rights – for example, because of race – automatically injures all the members of that race.”[208] Thus, for example, denying media workers the right to reply would constitute a limitation of a right enshrined in the American Convention with respect to a part of the population – in this case, journalists and similar professions.[209]
413. Secondly, with respect to the conditions placed on information – such as requiring its truthfulness or prior verification – the IACHR refers to the comments given above. The IACHR and the Rapporteur’s office again state that such prior conditioning undermines the exercise of free expression.
414. The demand for reasonable verification of all information broadcast[210] lies beyond the bounds set by the Convention and does not comply with the legitimate goals set down in Article 13.2 thereof: protecting the rights and reputations of others, or protecting national security, public order, or public health and morals. With respect to the proportionality of the restriction imposed, the Inter-American Court has said that “if there are various options to achieve” one of the legitimate objectives, “that which least restricts the right protected must be selected.”[211] In addition, the restriction must be “closely tailored to the accomplishment of the legitimate governmental objective necessitating it.”[212]
415. The “reasonable verification” requirement creates the possibility of any member of society requesting that a journalist be legally punished. Such a possibility contravenes the spirit of Article 13.2, because it is not necessary in ensuring a legitimate objective. The stated aim of this requirement is to protect the right to receive truthful information. But the standards state that all individuals have the right to receive information of all kinds, and it is the debating and exchanging of ideas that offers the best way to seek out the truth. The IACHR and the Special Rapporteur note that imposing, ante facto, the requirement of solely reporting truthful information serves only to deny the possibility of pursuing the debate necessary to reveal the truth.
416. In addition, the ideological leaning of the person making a given statement is an inadequate element for issuing a verdict on whether that statement is true or false. The IACHR understands that any ideological tendency can contribute to public debate, and so restricting that debate to those who publish in media outlets with a given ideological composition, even a balanced one, is inappropriate under the terms of Article 13 of the Convention.[213] This type of demand is supposedly justified by the fact that by providing society with information on the ideologies supported by media workers, the citizenry can more effectively assess the kind of information they receive. On the contrary, the IACHR and the Special Rapporteur believe that such justifications underestimate the capacity of democratic societies to identify information that responds to a given ideological leaning without the imposition of government controls. The right of freedom of expression and the right of access to information are indivisible; hence, the best way to ensure that society receives the information it needs to decide on matters of public interest is by guaranteeing a plurality of information and media voices, with a minimum of restrictions. We also note that requiring media outlets to identify themselves in ideological terms can lead to abuses by the government in controlling voices critical of it.
417. Thirdly, the IACHR points out that any precept that favors public officials by enabling them to impose criminal sanctions on criticisms made of them or their offices is incompatible with the provisions regarding the subsequent imposition of liability set forth in the Convention.[214] A number of comments on this matter are offered in section 2.III of this chapter.
418. In fourth place, and with particular reference to right of reply, the Rapporteur’s office repeats and elaborates on some of the ideas that were offered in the inadmissibility ruling in the case of Santana et al.
419. The Commission cannot ignore the controversy arising from the scope of the right of reply in connection with the right of free expression. Among the conflicting arguments, on the one hand are those who believe that the right of reply limits freedom of expression by forcing the media to transmit, free of charge, information that does not necessarily agree with the media outlet’s editorial line; on the other side stand those who hold that right of reply strengthens freedom of expression by encouraging and facilitating a more intense exchange of information. Consequently, the scope of the right of reply must be closely watched to ensure it does not undermine the right of free expression.
420. Article 14 of the American Convention provides that:
1. Anyone injured by inaccurate or offensive statements or ideas disseminated to the public in general by a legally regulated medium of communication has the right to reply or to make a correction using the same communications outlet, under such conditions as the law may establish. 2. The correction or reply shall not in any case remit other legal liabilities that may have been incurred.
3. For the effective protection of honor and reputation, every publisher, and every newspaper, motion picture, radio, and television company, shall have a person responsible who is not protected by immunities or special privileges.
421. The Commission understands that Article 14.1 of the American Convention guarantees the right of reply through the media outlet involved and under the conditions set by law. The Inter-American Court has already provided an analysis of this in its Advisory Opinion on the Enforceability of the Right to Reply or Correction, OC-7/86. On that occasion it determined that Article 14.1 did not indicate whether the victims were entitled to an equal or greater amount of space in which to reply; when the reply, once received, had to be published; within what time frame the right could be exercised; what language was admissible; etc. Under Article 14.1, these conditions are such “as the law may establish.”[215] The phrasing “as the law may establish” refers to a number of conditions related to the enjoyment of this right. The phrase refers to the effectiveness of the right in the domestic sphere, and not to its creation, existence or enforceability on the international plane. Consequently, the Court ruled that:
The fact that the States Parties may fix the manner in which the right of reply or correction is to be exercised does not impair the enforceability, on the international plane, of the obligations they have assumed under Article 1(1). That Article contains an undertaking by the States Parties “to respect the rights and freedoms” the Convention recognizes and “to ensure to all persons subject to their jurisdiction the free and full exercise of these rights and freedoms.” If for any reason, therefore, the right of reply or correction could not be exercised by “ anyone “ who is subject to the jurisdiction of a State Party, a violation of the Convention would result which could be denounced to the organs of protection provided by the Convention.[216]
422. The Commission notes that under Article 14 of the Convention, an alleged victim can invoke the right of reply to obtain immediate rectification through the publication or transmission, in the same media outlet, of the verifiable truth regarding the incident that was distorted by the reporter in question. Such actions can be taken only with factual information, and not in connection with commentaries or opinions. With reference to the expressing of opinions, the European Court of Human Rights has ruled that there are circumstances in which a value judgment must be backed by facts that are sufficiently solid so as to lead to that opinion. This position consequently allows the rectification of factual information in statements of opinion that are based on verifiable facts. In such circumstances, it would be necessary to demonstrate a relationship between a value judgment and the facts supporting it on a case-by-case basis.[217]
423. In the inter-American system, with respect to the question of what kind of expressions (statements of fact or opinions) can replies or rectification be requested for, the IACHR would like to point out that there is a substantial discrepancy between the wording of the English-language version of Article 14(1) on the one hand and that of the Spanish, Portuguese, and French versions on the other.
424. Article 14(1) of the Spanish version says:
1. Toda persona afectada por informaciones inexactas o agraviantes emitidas en su perjuicio a través de medios de difusión legalmente reglamentados y que se dirijan al público en general, tiene derecho a efectuar por el mismo órgano de difusión su rectificación o respuesta en las condiciones que establezca la ley.
425. Article 14(1) in the English version reads:
1. Anyone injured by inaccurate or offensive statements or ideas disseminated to the public in general by a legally regulated medium of communication has the right to reply or to make a correction using the same communications outlet, under such conditions as the law may establish.
426. The French version of Article 14(1) provides:
1. Toute personne offensée par des données inexactes ou des imputations diffamatoires émises à son égard dans un organe de diffusion légalement réglementé et qui s’adresse au public en général, a le droit de faire publier sa rectification ou sa réponse, par le même organe, dans les conditions prévues par la loi. 427. In the Portuguese-language version, Article 14(1) states:
1. Toda pessoa atingida por informações inexatas ou ofensivas emitidas em seu prejuízo por meios de difusão legalmente regulamentados e que se dirijam ao público em geral, tem direito a fazer, pelo mesmo órgão de difusão, sua retificação ou resposta, nas condições que estabeleça a lei.
428. In its Advisory Opinion on the Enforceability of the Right to Reply or Correction, the Inter-American Court noted the difference between the original texts – all of which are certified as being equally authentic – but made no statement regarding how the discrepancy might affect the scope of the right protected by Article 14(1).
429. Article 13 of the American Convention protects the expression of both information and ideas. The broad concept of protection enshrined in Article 13 was not followed by the final language of Article 14 of the American Convention in its Spanish, Portuguese, and French versions. Those versions expressly exclude all reference to ideas from their wording, protecting the right of reply solely with respect to inaccurate or offensive information. Omitting from the text the broad treatment given to different types of expression in Article 13 would seem to indicate that the Convention expressly excludes statements of opinion from those expressions to which the right of reply can apply.[218]
430. The IACHR elaborates: the jurisprudence developed by the inter-American system maintains that the falsehood of an idea is clearly impossible to verify.[219] Similarly, within the European system, a judgment issued by the European Court ruled that: “While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfill and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10.”[220] Demanding “truthfulness” in cases involving value judgments can lead to the almost automatic censorship of all information that cannot be proven; this would smother practically all political debate based chiefly on ideas and opinions of an essentially subjective nature. The possibility of correcting or responding to an opinion would pose the risk of an endless succession of interventions that would stifle the media’s own expression, thereby fueling the threat of self-censorship. Admitting the right to reply with respect to an opinion with which readers are not in agreement or which they believe to be offensive to the right of privacy or reputation would create an interminable chain of rectifications and replies.[221] In light of the above, if the purpose of the right of reply is to correct inaccurate or false information, then opinions not subject to such verification must be excluded from it.
431. With reference to the textual discrepancy in the different versions of Article 14 of the Convention, the IACHR believes that this issue must be resolved through the different methods of interpretation offered by international law. In interpreting the Convention, the Court has used traditional international law methods, relying both on general rules of interpretation and on supplementary means, as dealt with in Articles 31 and 32 of the Vienna Convention on the Law of Treaties.[222]
432. Article 32 of the Convention de Vienna stipulates that: “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.” Article 33.4 of the Vienna Convention on the Law of Treaties provides that: “when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32/39 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.”[223]
433. To achieve this, the IACHR believes a complementary means of interpretation should be used, to analyze the right granted by Article 14 in terms of the right of reply to ideas and, in so doing, reference should be made to the preliminary work that took place in drafting the Pact of San José.
434. In the preliminary documents and proceedings of the Inter-American Specialized Conference on Human Rights, the meaning and wording of Article 14 of the Convention was debated intensely and modified extensively.
435. In its earliest version in Spanish, the article read as follows: “toda persona afectada por informaciones o conceptos inexactos y agraviante emitidos en su perjuicio o a través de medios de difusión que se dirijan al público en general, tienen derecho a efectuar por el mismo órgano de difusión, en la misma forma y gratuitamente su rectificación o su respuesta.” The term conceptos in the original Spanish documents could be interpreted as equating to the “ideas” used in the current English-language text of Article 14.1.
436. Because of the heated debate unleashed by this article’s contents, a Working Group was set up during the discussions. The group was composed of the delegates of Argentina, Nicaragua, Panama, Mexico, Ecuador, Colombia, and the United States; and Prof. Justino Jiménez de Aréchaga, a member of the IACHR at the time, was invited to serve as an advisor. The Working Group, under instructions to draft the text of the article, discussed and voted on the new text as agreed upon, which is the current wording of the Spanish version of Article 14.1. However, the text of the English version retained the term “ideas,” and incorporated the other amendments agreed on by the Working Group.
437. Finally, the IACHR understands that were access to the media allowed for the purpose of rectifying or replying to the different ideas or opinions expressed by journalists, interviewees, and other speakers, the result would be to dissuade the transmission or publication of controversial issues. Moreover, media outlets would lose editorial control over their publications and would choose to cover only superficial stories.[224]
3. Supreme Court Decision of July 15, 2003
438. On July 15, 2003, the Constitutional Chamber of the Supreme Court of Justice ruled on a motion seeking the annulment, on grounds of unconstitutionality, of Articles 141, 148, 149, 150, 151, 152, 223, 224, 225, 226, 227, 444, 445, 446, 447, and 450 of the Criminal Code. Some of these articles define the crime of desacato contempt; others allow the use of common criminal law provisions to the same end. The Supreme Court upheld most of these precepts. 439. The IACHR and the Special Rapporteur offer an analysis of these articles of Venezuela’s law in the section dealing with those precepts that, if enforced, would undermine the right protected by Article 13 of the Convention. Irrespective of that effort, in this section the IACHR notes its concern regarding the Supreme Court’s decision, which upholds laws that the IACHR believes to be incompatible with that article of the Convention.
440. With respect to this issue, in a 1995 report the Inter-American Commission studied whether desacato laws were compatible with the American Convention on Human Rights.[225] In summary, the arguments were the following: (a) desacato laws provide public officials with a higher level of protection than private citizens, in direct contravention of the basic principle of democratic systems whereby checks such as public oversight are placed on the government to prevent and control abuses of its coercive powers; and (b) desacato laws dissuade criticism through the fear of legal action or fines that they instill in people. In addition, desacato laws do not allow the mechanism of exceptio veratitis, since, in general, they rule that affronts to public officials are consummated with the making of the statement itself. Moreover, desacato laws cannot be justified by stating that their goal is to defend “law and order” (a permissible reason for regulating free speech under Article 13), since that would be in breach of the principle that a properly functioning democracy is the best way to uphold the public order. In contrast to the special protection granted to public officials by desacato laws, the Commission notes that the doctrine established by the Supreme Court of Justice in Judgment 1,013 denies journalists and media workers the right to reply, even following alleged affronts to their persons.
441. The Constitutional Chamber’s ruling also provides that:
with respect to communications and in application of other constitutional precepts, the law can prevent the dissemination of information that leave other provisions or principles of the Constitution void of content.
442. Irrespective of the specific cases referred to in the decision, this general claim is a source of concern to the IACHR in that it contradicts the ruling made by the Inter-American Court of Human Rights in its Advisory Opinion OC-5 of November 13, 1985. On that occasion, the Court said that prior censorship was an extreme violation of the right of free expression in that “governmental power is used for the express purpose of impeding the free circulation of information, ideas, opinions or news... The violation is extreme not only in that it violates the right of each individual to express himself, but also because it impairs the right of each person to be well informed, and thus affects one of the fundamental prerequisites of a democratic society.” In OC-5 the Court also ruled that prior censorship “is always incompatible with the full enjoyment of the rights listed in Article 13, but for the exception provided for in subparagraph 4 dealing with public entertainments, even if the alleged purpose of such prior censorship is to prevent abuses of freedom of expression. In this area any preventive measure inevitably amounts to an infringement of the freedom guaranteed by the Convention.” This aspect of the Court’s jurisprudence was reaffirmed in its ruling in the “Last Temptation of Christ” case.[226] In turn, the IACHR has ruled that: “Article 13 of the American Convention expressly prohibits prior censorship except for the regulation of access to public entertainments for the moral protection of childhood and adolescence.”[227]
443. Consequently, and over and above the other reasons for concern regarding issues set forth in the judgment, it is clear that upholding desacato crimes, as the Supreme Court’s decision does, is in breach of the jurisprudence of the inter-American system.
D. Administrative proceedings against television stations
444. The IACHR and the Rapporteur’s office have been informed of administrative proceedings begun by the Ministry of Infrastructure against a number of Venezuelan television stations. These proceedings are based on legislation that runs contrary to full enjoyment of freedom of expression and could lead to the cancellation of the telecommunications service licenses or permits granted to those companies.[228]
445. According to the information received, on Wednesday, February 5, 2003, officials from the Ministry of Infrastructure visited the headquarters of Venevisión to serve notice of administrative proceedings for the investigation of alleged violations of Article 171 of the Telecommunications Law[229] and Article 53 of the Radiocommunications Regulations.[230] These proceedings were added to others initiated against Globovisión, RCTV, and Televen under the same laws. According to the information received, officials from the Ministry of Infrastructure, who declined to give their names, paid a brief visit to Globovisión to serve notice of the commencement of administrative proceedings on January 20, 2003. That same day, RCTV was also notified of the initiation of administrative proceedings. Carmen Carillo, a legal advisor with the Ministry of Infrastructure, paid a visit to RCTV’s headquarters to serve the notice. On January 30, the Ministry of Infrastructure began administrative proceedings against Televen. Ministry of Infrastructure legal advisor Carmen Carrillo was again responsible for serving the notice. On May 20, the Ministry of Infrastructure requested an extension of the deadline in the proceedings against Globovisión and RCTV. On May 31, the Ministry made the same request with respect to the Televen proceedings.
446. Administrative proceedings of this kind are conducted under the aegis of CONATEL (the National Telecommunications Commission), an entity that operates within the framework of the Ministry of Infrastructure, and the Director General a |
