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REPORT OF THE OFFICE OF THE SPECIAL
RAPPORTEUR FOR THE
In 1858, J.S. Mill wrote: "It is to be hoped that the time in which it was necessary to defend freedom as expression as one of the guarantees against corrupt or authoritarian government has passed."1 In recent years, unfortunately, some 150 journalists have been murdered and hundreds more threatened in our hemisphere. Indirect ways to limit freedom of expression are constantly being developed, either through legislation, court rulings or government-led initiatives. More than a century after Mill wrote his book, it is still necessary to defend freedom of expression as a guarantee, no only in times of dictatorship, but also under the rule of democratically elected governments. 2 The last two decades will go down in history as a time of major political change. People around the globe turned their backs on oppressive, authoritarian regimes to usher in more open governments democratically chosen in transparent elections. Free and fair elections became the preferred road to return to democracy. Such elections are without a doubt a prerequisite for democracy, but in and of themselves are hardly sufficient. Authoritarian regimes do not automatically become democratic through one or more elections, not matter how free and fair they may be. For the continued development of stable and participatory democracy, elections in themselves are not enough. Other elements inherent to democratic society must also be fostered, such as recognition and respect for human rights, effective and independent legislative and judicial branches of government, a party system that facilitates open lines of communication between citizens and leaders, an active civil society, and above all, wide-ranging freedom of expression and access to information to ensure that all citizens have the information they need to make decisions. Freedom of expression certainly holds a prominent position among the different requirements for a participatory and stable democracy. If it does not exist, it becomes impossible to develop the other elements needed to deepen democracy. Thus, freedom of expression has often been said to be the fundamental freedom underlying the very existence of democratic society. In this regard, the Inter-American Court of Human Rights has said, "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 associations 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."3 For freedom of expression to be fully developed, it must be reinforced by the political will of those who govern, by appropriate legislation laying the legal foundation for its defense and by an independent and effective judiciary that guarantees that it can be exercised to the fullest extent. Great strides have been made in fostering respect for freedom of expression throughout the hemisphere. Democracy has led to greater freedom of expression in comparison to previous decades when many countries in the Americas were under the rule of dictatorships or very authoritarian governments. Nevertheless, if democratic institutions are used to limit freedom of expression, democracy will not have been planted in the fertile ground necessary to extend its branches through the whole of society. Quite to the contrary, such ground may nurture authoritarian tendencies that continue to survive even after the birth of democracy.4 In many Latin American democracies today, the public institutions designed to act as checks on authorities and individuals are still weak. For example, in many cases the Judicial Power fails to be efficie to investigate situations brought to their attention and punish guilty parties, as appropriate. Corruption and drug trafficking have taken their toll on public institutions. In countries affected by such problems, the press has become the main check on authorities and individuals alike by bringing to light illegal or abusive acts previously unnoticed, ignored or perpetuated by official control bodies. In many instances the press has become the most effective instrument to uncover and/or stop the illegal or abusive acts of authorities or individuals. And in doing so, it often puts itself at risk. This is the context in which the Office of the Special Reporter will evaluate freedom of expression in the hemisphere today. Such an examination would fall short if it were not to take into account the democratic framework now in place. Free elections, respect for human rights, independent branches of government and freedom of expression are all basic elements of democracy and no one of them can be evaluated apart from the others. This is the first report prepared by the recently appointed Special Reporter on Freedom of Expression and, as such, it aims to prepare the way for a series of both general and subject-specific reports to come. Here the main objectives of the Office of the Special Reporter will be outlined and the initial views and concerns of the Reporter made known. Chapter I will cover background, the goals contemplated by the Inter-American Commission on Human Rights (IACHR) when it decided to create the Office of the Special Reporter on Freedom of Expression, the reporter’s work plan for the first three years and an account of what has been done in these first five months. Chapter II will review the basic norms on freedom of expression enshrined in the American Convention on Human Rights ("the American Convention") and the case law developed by the organs of the Inter-American system for the protection of human rights. Mention will also be made of cases now pending before the Inter-American Court of Human Rights. In Chapter III and IV the Special Rapporteur will outline his main concerns regarding freedom of expression today and address three specific problems: the murder of journalists, contempt laws and rules on the compulsory membership of journalists in professional associations ("compulsory licensing"). In Chapter V the Rapporteur will make some final considerations and recommendations for the attention of the Member States in general.
The Office of the Special Rapporteur on Freedom of Expression is a permanent office that operates independently and has its own budget. It was created by the Inter-American Commission on Human Rights in accordance with its powers and competenc, and operates within the legal framework of the Commission.5 The Inter-American Commission on Human Rights is an organ of the Organization of American States (OAS) whose principal function is to promote the observance and protection of human rights and to serve as a consultative body to the OAS. The powers of the Commission are derived mainly from the American Convention on Human Rights and the Charter of the Organization of American States. The IACHR investigates and rules on complaints alleging human rights violations, makes on-site vists, prepares draft treaties and declarations in the field of human rights and reports on the human rights situation in countries of the region. The Commission has touched upon the specific question of freedom of expression in its decisions on individual petitions concerning censorship and crimes against journalists that have gone unpunished. In special reports, such as that on contempt laws, the Commission has examined the question of threats to and restrictions on the media. The IACHR has also included freedom of expression among the topics examined during on-site visits and covered in general reports.6 Lastly, the Commission has taken precautionary measures in urgent situations in order to avoid irreparable damage to persons. 7 At its 97th Regular Session in October 1997, the Commission, pursuant to the faculties conferred upon it by the Convention and its own Regulations, unanimously decided to create the permanent Office of the Special Rapporteur on Freedom of Expression (hereinafter "the Office"), which enjoys both structural and functional independence. In doing so, the Commission acted in accordance with the faculties conferred upon it by the Convention and its own Regulations, giving due consideration to recommendations made by many sectors of society in the Member States that feel profound concern for ongoing restrictions on freedom of expression. The decision also grew out of observations made during on-site visits, during which the Commission was witness to the serious problems and threats to the full and effective enjoyment of a freedom that is of vital importance to the development and consolidation of the rule of law. At its 98th Special Session in March 1998, the Commission defined the characteristics and functions of the Office in general and decided to create a voluntary economic assistance fund for it.8 That same year the Commission announced that it would accept applications for the position of Special Rapporteur on Freedom of Expression in the Americas. After evaluating and interviewing the candidates, the Commission decided to appoint attorney Santiago Alejandro Canton of Argentina to the post. Mr. Canton assumed his position on 2 November 1998. By creating the Office, the Commission aims to raise public awareness of the importance of freedom of expression throughout the hemisphere. This is being done in the conviction that this basic right plays a fundamental role in the development and consolidation of democracy and in the protection of all other human rights. The other purposes of the Office are: to make specific recommendations to Member States regarding freedom of expression so that they can better take measures to support it, to draft specific reports and studies, and to quickly respond to any petition or communication reporting violations of freedom of expression in an OAS Member State. The initiative to create the permanent Office of the Special Rapporteur for Freedom of Expression was fully backed by OAS Member States at the Second Summit of the Americas, where the Heads of State and Government acknowledged the fundamental role freedom of expression plays in the area of human rights and in democracy, and expressed satisfaction with the creation of the new permanent Office. In the April 1998 Declaration of Santiago, the Heads of State and Government said:
At the same Summit, the Heads of State and Government made a commitment to support the Office of the Special Rapporteur for Freedom of Expression. In this regard, the Plan of Action adopted by the Summit called on governments to:
The Special Rapporteur has drawn up a plan of work outlining the main activities and priority areas for the Office’s first three years. The Special Rapporteur will concentrate on: 1) Drafting general and subject-specific reports; 2) creating a hemispheric network for the defense of freedom of expression; 3) making visits to OAS Member States to monitor the situation of freedom of expression; 4) promoting the right to freedom of expression in OAS Member States.
The Special Rapporteur will make visits to OAS Member States to ensure that the Office is well informed and up to date on the status of freedom of expression in the various countries. These visits will facilitate dialogue and the creation of the appropriate mechanisms and environment to freely exercise this right. During these visits the Special Rapporteur will meet with government representatives, NGOs and the media, as well as with individuals who take an interest in freedom of expression.
The promotion of freedom of expression, both in itself and as a part of all human rights, constitutes one of the most effective mechanisms to validate and defend that right in the continent. In the Rappoorteur’s opinion, promotion should include activities such as education, training and dissemination. The Special Rapporteur proposes that a hemispheric conference be organized to promote freedom of expression in the Americas. The main purpose of such a conference would be to set a common agenda for the defense of freedom of expression among Member States, the media, organizations representing civil society and journalists in general. In recent years, government representatives, independent journalists and NGOs have made their views on freedom of expression known. Different criteria used in examining the question have thus come to light. A hemispheric meeting would provide an opportunity to search for common ground and build a consensus on an agenda that would create true protection of freedom of expression throughout the region. The Rapporteur will seek financing in order to organize this conference. The Rapporteur will also raise the funds to carry out activities such as dissemination, training and education in the States of the Hemisphere. These activities will have the purpose of increasing awareness and knowledge amongst the diverse sectors of society--particularly those working daily as social communicators and the national institutions devoted to the area of freedom of expression--on the importance of the Inter-American system of human rights protection, the international norms on freedom of expression, the comparative case-law on the subject, and the importance of freedom of expression in the context and development of a democratic society. These dissemination and education activities will consist on panels, seminars and the preparation of handbooks and other kinds of publications.
In his first few months on the job, the Special Rapporteur has attended numerous events to make the Office known and explain what it does. In November 1998, he participated in the 54th General Assembly of the Inter-American Press Association (IAPA) in Punta del Este, Uruguay, where he spoke on the goals of the Office and the challenges it faces. He stressed the office’s importance for the protection of human rights in general and of freedom of expression in particular.11 The Rapporteur also expressed the desire to coordinate with IAPA so that experience and information could be readily shared. During the meeting, the Special Rapporteur also had the opportunity to speak personally to several IAPA representatives about freedom of expression in various countries of the region. At the end of its meeting, the IAPA issued a resolution expressing its support for the activities being carried out by the Office of the Special Rapporteur for Freedom of Expression.12 During the same meeting, the Special Rapporteur also met with representatives of foundations that work in the field of freedom of expression, such as the Freedom Forum and the McCormick Foundation, and discussed methods of working together in the future. The Freedom Forum has already collaborated with the Office on a seminar convened to promote coordination of activities with civil society and has expressed an interest in broadening cooperation in the future. In November 1998, upon the invitation of the Inter-American Institute of Human Rights, the Special Rapporteur attended the 4th Inter-American Seminar on Mass Media and Democratic Society in Cartagena (Colombia) to talk about the Office’s functions and objectives regarding the defense of freedom of expression in the hemisphere.13 In December 1998, the Special Rapporteur was invited to participate in a working group on "Investigative Journalism and Corruption" sponsored by Organization Article XIX.14 The meeting’s objective was to come up with a proposal for legislation that would facilitate journalistic investigation of corruption. The working group seeks support from all rapporteurs for freedom of expression (OAS, UN and OSCE) and invites their collaboration in proposing legislation to facilitate the work of journalists. In February 1999, the Special Rapporteur was invited to speak about the Office before the Coordinating Committee of Organizations for Freedom of the Press.15 At the end of the meeting, this group expressed its full support for the Office and said that it would seek ways to actively work with the Special Rapporteur. The Rapporteur participated in the Commission’s 102 Sessions, during which, among other things, reported on the activities carried out and coordinated future activities with the members of the Commission. The Special Rapporteur has also been active in disseminating information on the new Office through the media. He has participated in numerous domestic and hemispheric radio and television programs. The Special Rapporteur has also met with the Permanent Representatives of the OAS member States to inform them of the activities being planned and to establish an open line of communication between the Office and them. In the coming months, the Special Rapporteur will continue to meet with the Permanent Representatives. Just one week after assuming his duties, the Special Rapporteur accompanied the IACHR on its on-site visit to Peru. He participated in numerous meetings with representatives of the Peruvian government, civil society, non-governmental organizations and the media. At the end of the visit, the Special Rapporteur added his comments on freedom of expression in Peru to the press release issued by the IACHR.16
As has already been stated in this report, one of the Office’s priorities is to establish a hemispheric network for the defense of freedom of expression. It would be a way to channel information on violations of freedom of expression wherever they occur in the region and would essentially be composed of organizations representing civil society and journalists. To begin this work, the Special Rapporteur, Freedom Forum and the Institute of Press and Society (IPYS) of Peru jointly sponsored a meeting of civil society representatives from various Latin American countries. This represented a major step toward coordinating efforts between civil society organizations and the Office of the Special Rapporteur. One of the examples of how the hemispheric net should operate is the case of the Peruvian radio broadcaster Johny Pezo, in which the Rapporteur was involved. Mr. Pezo, was forced by the Movimiento Revolucionario Tupac Amaru (MRTA) to broadcast one of their statements. Mister Pezo, who was told he would be killed should he refuse to read the statement, decided to do it. However, he informed the audience that he was reading the statement against his will. Having read the statement he left the radio station and was questioned by the police. The next day he reported to the Police and was detained charged with inciting crime. Immediately after learning about his detention, the IPYS group in Peru verified the veracity of the news. The group hired a lawyer to defend Johny Pezo, and reported the incident to the international community via internet, including the Rapporteur. The Rapporteur immediately contacted the Peruvian Mission before the OAS in order that his concern for this case was transmitted to the authorities of that country. Finally, Mr. Pezo was released and cleared of accusation. This example ilustrates how a well-organized hemispheric information network can help to resolve problems of violations of freedom of expression wherever they may occur in the Americas.
At this time, it would be pertinent to briefly refer to the specific and general norms on freedom of expression found in the American Convention on Human Rights. The relevant jurisprudence developed by organs charged with protecting human rights within the Inter-American system will also be reviewed. Article 13 of The American Convention on Human Rights says that everyone has the right to freedom of thought and expression, which can be exercised in any medium, and shall not be subject to censorship but rather to subsequent imposition of liability. The Convention states:
Article 4 of The American Declaration of the Rights and Duties of Man provides, "Every Person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever." Moreover, Article 14 of the Convention consecrates the right to reply or correction, pointing out that anyone injured by inaccurate or offensive information disseminated by the media has the right to reply or to make a correction, under such conditions as the law may establish.17 These norms which relate specifically to freedom of expression, must be taken in the context of other general norms established by the American Convention, such as the provisions of Articles 1 and 2. Article 1(1) stipulates that States undertake to respect the rights and freedoms recognized in the Convention and to ensure to all persons subject to their jurisdiction the free and full exercise of them. Thus, the State acquires two obligations: (1) to respect, and (2) to guarantee the rights and freedoms enshrined in the Convention. With regard to the respect of the rights and freedoms recognized in the Convention, the Inter-American Court of Human Rights has pointed out that:
With regard to the second obligation, that of guaranteeing the free and full exercise of the rights recognized by the Convention, the Inter-American Court of Human Rights has said that it implies: 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 judicially 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.19 Article 2 of the American Convention specially provides that "the States Parties undertake to adopt …such legislative or other measures as may be necessary to give effect to those rights or freedoms," if they do not already exist.20 In the same way, the Court has said that "the obligation to ensure the free and full exercise of human rights is not fulfilled by the existence of a legal system designed to make it possible to comply with this obligations –it also requires the government to conduct itself so as to effectively ensure the free and full exercise of human rights".21
This report will next provide a brief summary of the main case law on freedom of expression laid down by the organs charged with protecting human rights in the Inter-American Human Rights System, namely the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights. Both organs have developed an important body of case law dealing directly with freedom of expression. The Court has done so mainly through advisory opinions, particularly in relation to the compulsory licensing of journalists. The Commission, has established its doctrine through individual cases and a special study of contempt laws in the hemisphere. In the sections that follows, the Rapporteour reproduces the case law developed by organs of the interamerican system of human rights on the following issues: characteristic and dimensions of freedom of expression; the role of the media in freedom of expression; restrictions to freedom expression; freedom of expression, prior censorship and subsequent liability; freedom of expression and the protection of personal honor and dignity; and freedom of expression and democracy.22 Article 13 indicates that freedom of thought and expression "includes freedom to seek, receive, and impart information and ideas of all kinds…" This language established that 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. Hence, when an individual's freedom of expression is unlawfully restricted, it is not only the right of that individual that is being violated, but also the right of all others to "receive" information and ideas. The right protected by Article 13 consequently has a special scope and character, which are evidenced by the dual aspect of freedom of expression. It 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. Ts 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.23 In its individual dimension, freedom of expression goes further than the theoretical recognition of the right to speak or to write. It also includes and cannot be separated from the right to use whatever medium is deemed appropriate to impart ideas and to have them reach as wide an audience as possible. When the Convention proclaims that freedom of thought and expression includes the right to impart information and ideas through "any…medium," it emphasizes the fact that the expression and dissemination of ideas and information are indivisible concepts. This means that restrictions that are imposed on dissemination represent, in equal measure, a direct limitation on the right to express oneself freely. The importance of the legal rules applicable to the press and to the status of those who dedicate themselves professionally to it derives from this concept.24 In its social dimension, freedom of expression is a means for the interchange of ideas and information among human beings and for mass communication. It includes the right of each person to seek to communicate his own views to others, as well as the right to receive opinions and news from others. 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 opinions.25 The two dimensions mentioned (supra 30) 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 untrue in the eyes of the censor. It is equally true that the right to impart information and ideas cannot be invoked to justify the establishment of private or public monopolies of the communications media designed to mold public opinion by giving expression to only one point of view.26 If freedom of expression requires, in principle, that the communication media are potentially open to all without discrimination or, more precisely, that there be no individuals or groups that are excluded from access to such media, it must be recognized also that such media should, in practice, be true instruments of that freedom and not vehicles for its restriction. It is the mass media that make the exercise of freedom of expression a reality. This means that the conditions of its use must conform to the requirements of this freedom, with the result that there must be, inter alia, a plurality of means of communication, the barring of all monopolies thereof, in whatever form, and guarantees for the protection of the freedom and independence of journalists. 27 The Convention itself recognizes that freedom of thought and expression allows the imposition of certain restrictions whose legitimacy must be measured by reference to the requirements of Article 13 (2). Just as the right to express and disseminate ideas is indivisible as a concept, so too must it be recognized that the only restrictions that may be placed on the mass media are those that apply to freedom of expression. It results therefrom that in determining the legitimacy of restrictions and, hence, in judging whether the Convention has been violated, it is necessary in each case to decide whether the terms of Article 13 (2) have been respected.28 These provisions indicate under what conditions a limitation to freedom of expression is compatible with the guarantee of this right as it is recognized by the Convention. Those limitations must meet certain requirements of form, which depend upon the manner in which they are expressed. They must also meet certain substantive conditions, which depend upon the legitimacy of the ends that such restrictions are designed to accomplish.29 Article 13 (2) of the Convention defines the means by which permissible limitations to freedom of expression may be established. It stipulates, in the first place, 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 entertainment, 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.30 Abuse of freedom of information thus cannot be controlled by preventive measures but only through the subsequent imposition of sanctions of those who are guilty of the abuses. But even here, in order for the imposition of such liability to be valid under the Convention, the following requirements must be met: a) the existence of previously established grounds for liability; b) the express and precise definition of these grounds by law; c) the legitimacy of the ends sought to be achieved; d) a showing that these grounds of liability are ‘necessary to ensure’ the aforementioned ends. All of these requirements must be complied with in order to give effect to Article 13 (2).31 In fact it is possible, within the framework of the Convention, to understand the meaning of public order as a reference to the conditions that assure the normal and harmonious functioning of institutions based on a coherent system of values and principles. In that sense, restrictions on the exercise of certain rights and freedoms can be justified on the ground that they assure public order. The Court interprets the argument to be that compulsory licensing can be seen, structurally, as the way to organize the exercise of professions in general. This contention would justify the submission of journalists to such a licensing regime on the theory that it is compelled by public order.32 It is important to note that the European Court of Human Rights, in interpreting Article 10 of the European Convention, concluded that ‘necessary,’ while not synonymous with ‘indispensable,’ implied ‘the existence of a ‘pressing social need’’ and that for a restriction to be ‘necessary’ it is not enough to show that it is ‘useful,’ ‘reasonable’ or ‘desirable.’ (Eur. Court H.R., The Sunday Times Case, judgement of 26 April 1979, Series A no. 30, para. 59, pp. 35-36.) This conclusion, which is equally applicable to the American Convention, suggests that the ‘necessity’ and, hence, the legality of restrictions imposed under Article 13 (2) on freedom of expression, depend upon a showing that the restrictions are required by a compelling governmental interest. Hence if there are various options to achieve this objective, that which least restricts the right protected must be selected. Given this standard, it is not enough to demonstrate, for example, that a law performs a useful or desirable purpose; to be compatible with the Convention, the restrictions must be justified by reference to governmental objectives which, because of their importance, clearly outweigh the social need for the full enjoyment of the right Article 13 guarantees. Implicit in this standard, furthermore, is the notion that the restriction, even if justified by compelling governmental interests, must be so framed as not to limit the right protected by Article 13 more than is necessary. That is, the restriction must be proportionate and closely tailored to the accomplishment of the legitimate governmental objective necessitating it. (The Sunday Times Case, supra, para. 62, p. 38. See also Eur. Court H, R., Barthold judgement of 25 March 1985, Series A no. 90, para. 59, p. 26).33 Article 13 (2) must also be interpreted by reference to the provisions of Article 13 (3), which is most explicit in prohibiting restrictions on freedom of expression by ‘indirect methods and means… tending to impede the communication and circulation of ideas and opinions.’ Neither the European Convention nor the Covenant contains a comparable clause. It is significant that Article 13 (3) was placed immediately after a provision – Article 13 (2) – which deals with permissible restrictions on the exercise of freedom of expression. This circumstance suggests a desire to ensure that the language of Article 13 (2) not be misinterpreted in a way that would limit, except to the extent strictly necessary, the full scope of the right to freedom of expression.34 Article 13 (3) does not only deal with indirect governmental restrictions, it also expressly prohibits ‘privacy controls’ producing the same result. This provision must be read together with the language of Article 1 of the Convention wherein the States Parties ‘undertake to respect the rights and freedoms recognized (in the Convention)…and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms…’ Hence, a violation of the Convention in this area can be the product not only of the fact that the State itself imposes restrictions of an indirect character which tend to impede ‘the communication and circulation of ideas and opinions,’ but the State also has an obligation to ensure that the violation does not result from the ‘private controls’ referred to in paragraph 3 of Article 13.35 Article 13 may be violated under two different circumstances, depending on whether the violation results in the denial of freedom of expression or whether it results from the imposition of restrictions that are not authorized or legitimate.36 In truth, not every breach of Article 1 of the Convention constitutes an extreme violation of the right to freedom of expression, which occurs when governmental power is used for the express purpose of impeding the free circulation of information, ideas, opinions or news. Examples of this type of violation are prior censorship, the seizing or barring of publications and, generally, any procedure that subjects the expression or dissemination of information to governmental control. Here 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. The Court believes that the compulsory licensing of journalists, as that issue is presented in the instant request, does not fall into this category.37 Suppression of freedom of expression as described in the preceding paragraph, even though it constitutes the most serious violation possible of Article 13, is not the only way in which that provision can be violated. In effect, any governmental action that involves a restriction of the right to seek, receive and impart information and ideas to a grater extent or by means other than those authorized by the Convention, would also be contrary to it. This is true whether or not such restrictions benefit the government.38 Furthermore, given the broad scope of the language of the Convention, freedom of expression can also be affected without the direct intervention of the State. This might be the case, for example, when due to the existence of monopolies or oligopolies in the ownership of communications media, there are established in practice ‘means tending to impede the communication and circulation of ideas and opinions’.39 4. Freedom of Expression, Prior Censorship and subsequent liability The Convention allows restrictions to be imposed on the right to freedom of expression in order to protect the community from certain offensive manifestations and prevent the abusive exercise of that right. Article 13 authorizes certain restrictions to the exercise of this right and sets out the permissible limits and the requirements necessary to put these restrictions into practice. The principle set forth in that article is clear in that prior censorship is incompatible with the full enjoyment of the rights protected therein. The exception is the one contained in paragraph 4, which allows censorship of "public entertainments" for the moral protection of children. The only restriction authorized by Article 13 is the subsequent imposition of liability. Moreover, any subsequent imposition of liability must have been previously established by law and may only be 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.40 The prohibition of prior censorship, with the exception present in paragraph 4 of Article 13, is absolute and is unique to the American Convention, as neither the European Convention nor the Covenant on Civil and Political Rights contains similar provisions. The fact that no other exception to this provision is provided is indicative of the importance that the authors of the Convention attached to the need to express and receive any kind of information, thoughts, opinions and ideas.41 Under Article 13, any restriction of the rights and guarantees contained therein must take the form of a subsequent imposition of liability. Abusive exercise of freedom of expression may not be subject to any other kind of limitation. As that article indicates, anyone who has exercised this freedom shall be answerable for the consequences for which he is responsible. Based on this reasoning, the Commission considers that the decision to ban the entry, circulation, and distribution of the book "Impunidad diplomática" in Chile violates the right to impart "information and ideas of all kinds", a right that Chile is bound to respect as a State Party to the American Convention. In other words, the decision is an unlawful restriction of the right to freedom of expression, in the form of an act of prior censorship disallowed by Article 13 of the Convention.42 The Commission also ruled on the matter when it decided a case where the Government of Grenada was allegally responsible for the violation of the right to freedom of expression because of the confiscation of several books.43 In its decision, the Commission pointed out that acts of confiscation and banning of books by the Government have the effect of imposing "prior censorship" on freedom of expression, and therefore such acts affect both dimensions of the right, that is, to receive and to issue information from "any person", both to and from the community, with no distinction of borders, as guaranteed by Article 13 of the American Convention on Human Rights. The Government failed to prove that the content of the books fit any of the exceptions, namely the "respect for the rights or reputations of others" or "the protection of national security, public order, or public health or morals" as expressed by the aforementioned Article 13. In light of the above, the Commission found that the Government of Grenada had violated the victims’ rights to freedom of thought and expression when it confiscated and banned their books. The Commission stated:
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.47 Within this context, journalism is the primary and principal manifestation of freedom of expression of thought. For that reason, because it is linked with freedom of expression, which is an inherent rights of each individual, journalism cannot be equated to a profession that is merely granting a service to the public through the application of some knowledge or training acquired in a university or through those who are enrolled in a certain "colegio".48
The Inter-American Commission of Human Rights is currently processing more than 20 cases that charge various OAS Member States with having violated the right to freedom of expression. The IACHR has also brought two cases of possible violations of freedom of expression before the Inter-American Court of Human Rights. These are: Case No. 11.803 "Juan Pablo Olmedo and others" (Chile) The Commission recently referred to the Court a case against Chile regarding the violation of the right to freedom of expression of Juan Pablo Olmedo and others. The case relates to judicial censorship, upheld by the Supreme Court of Chile, which banned the screening of the movie "The Last Temptation of Christ". 49 Case No. 11.762 Baruch Ivcher Bronstein (Peru) The Commission recently referred a case to the Inter-American Court of Human Rights against Peru regarding, amongst other rights, the right to freedom of expression of Baruch Ivcher Bronstein. Mr. Ivcher, who was effectively deprived of his nationality by the Peruvian State, owns a television channel which was critical of the Peruvian Government. Through various legal mechanisms, Peru deprived him of his nationality in order to prevent him from owning the TV channel which by law are required to be owned by Peruvian nationals. The Rapporteur is aware of the existence of matters related to freedom of expression that have not been developed in the case law, among others: freedom of expression and gender; freedom of expression and poverty; and precautionary and provisional measures relating to freedom of expression. The Rapporteur will continue reporting on the development of case law on freedom of expression and other related matters. Evaluation of the Freedom of Expression in the Hemisphere This report is being presented just shortly after the position of the Special Rapporteur for Freedom of Expression was created. Thus, the Rapporteur will limit himself to a few initial concerns regarding freedom of expression in the hemisphere, based on preliminary observations and information received to the present time. Mention will also be made of countries that have given us cause for special concern regarding the state of freedom of expression. There are also certain areas in which threats to freedom of expression are especially noteworthy: the murder of journalists, contempt legislation and compulsory membership in a professional association. In general terms it is possible to say that with democratic elections in 34 over 35 States of the hemisphere, the recognition and protection of freedom of expression has improved greatly in comparison to previous decades, when dictatorial or authoritarian regimes were in and of themselves a clear restriction to freedom of expression. Nevertheless, in several countries freedom of expression is still endangered. Many States have not yet created a climate that fosters the full and effective recognition and development of this right. A variety of factors come into play depending on the circumstances in each country. Among others, we can mention the murder of journalists and the ongoing, daily threats that hang over the media in general and over journalists in particular, the determination of some governments to silence critics through the use of various forms of harassment, the continued existence and enforcement of laws contrary to the American Convention and other international instruments safeguarding freedom of expression, and the use of prior censorship and the existence of censorship bodies. The murder of journalists is an extremely grave threat to the exercise of freedom of expression and the most direct way of attacking this fundamental right. In 1998 eighteen journalists were killed: Brazil (2), Canada (1), Colombia (9), Mexico (4) and Peru (2).50 In some cases it has not been possible to establish with certainty whether the motive of the crime was the professional activity of the journalist in question. Nonetheless, in all of these cases, organizations working to safeguard freedom of expression believe that there is sufficient cause to suspect that the motive behind each killing may indeed have been work being carried out by the journalist. Intimidation of journalists through verbal or written threats and actual attacks against them or their properties are frequently used in our region in an attempt to limit freedom of expression. The Special Rapporteur has already received a great number of communications reporting on acts of intimidation, especially against investigative journalists. The murder of journalists and threats against them do not exactly create a climate favorable to the development of freedom of expression. Violence is being used to silence the "primary and principal manifestation" of the right of freedom of expression. The Special Rapporteur has received information to the effect that most cases of murder and threats against journalists have gone unpunished and are not investigated by law enforcement agencies with the efficacy, determination and dedication that they deserve. It should be recalled that every State has the duty to effectively investigate the facts whenever journalists are murdered or threatened, and to punish those responsible.51 The Special Rapporteur has also come to recognize that many of the countries of the hemisphere continue to have in place legislation that is both anachronistic and incompatible with the American Convention and other international human rights instruments. Two cases can be mentioned to illustrate the situation – Panama and Chile. Panama has a legal framework that seriously limits freedom of expression (the specific legislation violating Article 13 of the Convention is mentioned further on in this document). President Perez Balladares has more than once said that he intends to change the law, but until now nothing has been done. In Chile there are laws on the books with provisions that clearly limit freedom of expression. Articles 263 and 264 of the Penal Code, article 284 of the Military Code of Justice and Article 6 (b) of the State Security Law are prime examples. The last of these provides for the punishment of those who "defame, slander or libel" high level authorities such as the President, ministers, members of Parliament, members of superior courts, chiefs of staff of the armed forces, etc. In this regard, various Chilean officials have used this provision against people who have been critical of them.52 For example, on April 13, 1999, the Appellate Court of Santiago in application the act on security of the state banned "El Libro Negro de la Justicia Chilena" (The Black Book of Chilean Justice), written by the journalist Alejandra Matus on the basis of a request by Servando Jordan, member of the Supreme Court and former President of that body. Members of the civil police seized all copies from the offices of Editorial Planeta. They also seized copies from bookshops in the country. It has also come to the attention of the Special Rapporteur that intimidation of journalists and the media occurs through the preparation and presentation before legislative bodies of bills that would clearly threaten freedom of expression. In Peru, for example, a bill has been introduced that, if it becomes law, would require journalists to reveal their sources. Last June in Argentina, the Executive introduced a bill before Congress that would provide incarceration for anyone who films or records confidential records of government employees without their consent and reproduces them in the media. The bill would sanction the press by punishing "(anyone who), to uncover secrets or invade the privacy of another person, records or reproduces sounds or images without his consent." If this bill were to become law, it would forbid the use of hidden recorders and cameras, which have proven so useful in recent years to uncover acts of corruption committed by government and private-sector employees. Currently, the bill has been approved by one (the Senate) of the two houses of Congress. The Office of the Special Rapporteur is especially worried by attempts to use the courts to limit freedom of expression, especially that of journalists who are critical of the authorities. At times charges are made against journalist based on legislation that clearly violates of Article 13 of the American Convention on Human Rights. This is especially true of charges of contempt, as we shall see later on. The courts are also used as a means of intimidation. Journalists are imprisoned or fined, made to appear before the court on a regular basis, and forced to spend money to defend themselves. This seriously affects the practice of their profession. When such means are brought to bear against journalists who are critical of the government, the courts become an instrument for the limitation of freedom of expression rather than a channel for resolving the conflicting interests of the authorities and the journalist. In Panama, for example, many lawsuits against journalists have been initiated by government employees. Also worrisome are court decisions restricting freedom of expression. Certain decisions handed down by some courts in the region are clearly out of line with the provisions of the American Convention and international jurisprudence. In Chile, for example, the Supreme Court banned the screening of the film "The Last Temptation of Christ". In Argentina there has been an alarming increase in the number of Supreme Court decisions restricting freedom of expression (11 in the last year alone) and most of them involve senior governmental authorities in some regard. The Special Rapporteur is also concerned by the continuing existence of censorship bodies in some countries, which restrict, and in effect put a straitjacket on freedom of expression. The Constitution of Chile, for example, stipulates that, "The law shall establish a system of censorship for the exhibition and publicity of cinematography productions". The Rapporteur has become aware that the Chilean Government has tried to modify its Political Constitution in respect to censure of the exhibition and publicity of cinematography productions. On April 14, 1997, the Executive presented to the National Congress a plan to reform the Constitution article 19, number 12, final subparagraph. This bill has the purpose of eliminating and substituting it by a system of film rating. This bill is still under study by Congress. Another mechanism sometimes used to control freedom of expression is the use of public funds to favor some media and prejudice others. In Nicaragua, for example, the State Revenue Office (Dirección de Ingresos) and the Customs Office recently stopped placing announcements in the daily "La Prensa", while continuing to run them in other media. The application of different standards to "La Prensa" and the rest of the media indicates that there is an intention to harm the former. Official announcements are often a significant source of income for the media. State bodies must establish clear, objective and fair criteria on how such official announcements will be distributed. Such announcements should never by used to damage some media and favor others. Lastly, one of the most serious concerns the Office of the Special Rapporteur has is in regard to journalists being investigated by intelligence services and other state agencies. The Special Rapporteur has been given access to documents, allegedly belonging to the Peruvian intelligence services, that describe in great detail a plan to undertake in-depth investigation of journalists critical of the government, and especially of those critical of the Armed Forces and Intelligence Services. More information on this will be provided later in this report. In Argentina, four Air Force officers were condemned in December 1998 for spying on 10 journalists at a time when the press was critical of the safety levels of airports and airport privatization. The Special Rapporteur notes that the Chapultepec Declaration is receiving growing recognition among all social sectors of our hemisphere and is becoming a major point of reference in the area of freedom of expression.53 In this first report, the Special Rapporteur would like to express special concern for the status of freedom of expression in Panama and Peru. Mention will also be made of the situation in Cuba. Currently Panama has a set of anachronistic laws on freedom of expression. Rather than acting as an effective guarantee of rights, these laws have become a frequently used tool in the hands of government employees who wish to silence criticism, thereby restricting freedom of expression and endangering public debate. This use of outdated laws by government employees has created a situation of non-stop harassment and has placed a virtual siege on journalists and the press in general. Since journalists often carry out their duties in sectors of society that may impinge on the functions of some government employees, journalists now find the threat of court action hanging over them constantly. The main pillars of this outdated legal framework in Panama are Cabinet Decree 251 of 1969 on censorship; Chapters I and II of Title III of the Criminal Code (Articles 172-180) on "crimes against honor" (delitos contra el honor); and Laws 11, 67 and 68 of 1978 on the media and journalism, commonly referred to as the "gag laws". To this triumvirate should be added provisions on contempt derived from the Political Constitution and Article 307 of the Criminal Code, and which those who work in the Judiciary, the Public Prosecutor’s Office and the Electoral Tribunal often use to silence their critics. The Rapporteur has received numerous petitions regarding charges filed by Panama State officials against journalists, revealing the intent to silence criticism against the Government through judicial pressure. The ombudsman, Dr. Italo Isaac Antinory Bolanos, together with a number of independent journalists, expressed their concern to the Rapporteur for the judicial persecution by prosecutor Jose Antonio Sossa against journalists and other personalities. The ombudsman himself has been threatened with charges after making public his opposition to the use of phone tapping by prosecuting authorities. Some of the information received reveals that: 1. On 28 February 1998, three officers of the Technical Judicial Police raided Diario La Prensa in Panama City and tried to detain investigative reporter Herasto Reyes on charges of slander and libel of the President of the Republic. The journalists in the premises of Diario La Prensa at the time surrounded Mr. Reyes and prevented him from being arrested. This judicial action stemmed from an article for which Mr. Reyes had interviewed José Renán Esquivel, former director of the Social Security Savings Fund (Caja de Seguro Social). The journalist quoted Mr. Renán as saying that in 1982 His Excellency, then Finance Minister was involved in a financial scandal related to a CSC housing project. 2. In regard to the Office of the Public Prosecutor, when accusations proliferated about the inflow of illegal funds during the 1994 electoral campaign and the peddling of influence in the allocation of public assets, the two public prosecutors who manage the Office, José Antonio Sossa and Alma Montenegro de Fletcher, decided to bring charges against the journalists who made the accusations public, Gustavo Gorriti and Rolando Rodriguez in the first case and Marcelino Rodriguez, Michelle Lescure and Brittmarie Janson Pérez in the second. 3. In February 1998 José Luis Sosa, Director of the National Police, brought a libel and slander suit against Miguel Antonio Bernal, journalist, lawyer and a candidate to the Mayor’s Office of the Capital District. On the television news program "TVN-Noticias", Mr. Bernal had said that the National Police was responsible for the death of four prisoners who were decapitated by other inmates of the Coiba Island prison colony. 4. In March of 1999, the Electoral Tribunal determined that Editorial Panama America SA, EPASA, violated Article 177 of the Electoral Code and was liable to pay ten thousand Balboas. Article 177 provides that "political surveys must be registered with the Electoral Tribunal before being published." The company in charge of the survey had presented the information by fax. The Tribunal decided to reject that presentation and demanded that it be submitted by hand. The Rapporteur considers that the requirement of prior registry of the surveys imposed by the Electoral Tribunal could be considered prior censorship. In relation to this subject, the Special Rapporteur wishes to emphasize that the legal definition of and protection against libel and slander does not in itself constitute a violation of the right to freedom of expression. The violation occurs when such legal figures are joined to other norms to forge a weapon wielded constantly by people in the public employ to impede open and transparent discussion. The result is an environment of overriding threat to the free enjoyment of freedom of expression, especially when journalists, the "prime manifestation" of the right to freedom of expression, are being constantly harassed with lawsuits. It is imperative that all Panamanian legislation regarding the press be reviewed and brought into line with the provisions of Article 13 of the Convention. In Peru, limitations on the independence of the Judiciary have bred a climate of legal insecurity in regard to the practice of journalism. A wave of death threats and a systematic campaign of persecution and personal attack against journalists critical of the government have exacerbated the situation. During its visit to Peru, the Inter-American Commission of Human Rights announced in a press release that "the Commission received, however, various complaints from journalists – and especially from those engaging in investigative journalism – reporting that they often are subjected to threats and various kinds of harassment".54 The Special Rapporteur accompanied the Commission on the on-site visit, and also issued a press release at the close of the visits. In it, he said that, "The death threats that many journalists have received for the practice of their professions are our main concern. Given that approximately 150 journalists have been killed in our hemisphere in recent years, any threat on the life of a journalist must be fully investigated. Moreover, the government has the responsibility of finding means to ensure that the profession can be practiced without consequences that endanger the physical well-being of those who practice it."55 The Special Rapporteur also received information on indirect means of bringing pressure to bear with the objective of limiting freedom of expression, including court cases, attacks on one’s professional reputation and workplace persecution. The Rapporteur had access to documentation allegedly belonging to the Peruvian Intelligence Service. These documents suggest that there could be an intention to restrain freedom of expression by harassing journalists. According to these documents, a group of journalists should be investigated with the purpose of obtaining evidence that by revealing intelligence activities through their profession, they are involved in illegal activities against the government or the army. The documents also note that these journalists carry out investigations on sensitive intelligence areas for the government and the army, such as torture, murder between members of the Armed Forces, special tasks by the SIN and SIE (intelligence services), and phone tapping. The journalists mentioned in the documents are: " Cesar Hildebrant and his investigating team; Cecilia Valenzuela and her investigating team; Lilian Zapata; Lucho Iberico; Josefina Towsend; Nicolas Lucar; Monica Chang; Beto Ortiz, special investigation team (Mr. Ivcher); Jose Arrieta (Pepe); Alejo (Gordo); Milagros (Chala); Naomi (Gorda); Karen (Flaca); Ivan; Carmen (Camucha); Javier; Jaime; personnel of the newspaper "La Republica" (oposition) and others." Some of the journalists listed in the documents have received death threats more than once, and one of them, José Arrieta Matos, found himself obliged to flee the country. The documents in question would indicate that certain sectors of the Peruvian government have the intention of silencing journalists who have expressed opinions critical of authorities. The Special Rapporteur also learned of a great many individual cases regarding freedom of expression in Peru, including the following: Angel Paez Salcedo, chief of the investigative department of the daily La Repûblica and correspondent of the Argentine daily Clarín. Claims that in early 1998, he began to receive threats on his life. According to organizations for the protection of the press, he was being threatened for his investigation of corruption in the army and clandestine operations of the Army Intelligence Service. César Hildebrandt, anchor of the news program "En Persona". He received several death threats. On 5 November 1998, he received a threat on his life and was labeled a "traitor to the fatherland" by an Armed Forces commanding officer. The threats he received warned him that he was being watched closely because of his report on the National Intelligence Service.56 José Arrieta Matos, Director of the Investigative Department of Channel 2/Frecuencia Latina. Faced with the relentless pursuit of the security forces, he sought refuge in the United States. Peruvian authorities accused Mr. Arrieta Matos of having committed an offense against the public administration. He left the country in January of 1998, and on 16 July of that year the U.S. Department of Justice granted him refuge. Cecilia Valenzuela, director of the television program "Acá y ahora" broadcast by Andina de Televisión., indicates that she received a telephone call and anonymous letters threatening her with death in May 1998. According to organizations for the protection of the press, the cause was her investigation of cases of government corruption and human rights abuses by military personnel.57 The newspaper "El Comercio" also received numerous phone threats in April of last year. Press protection organizations attribute this to the publication of an interview with a former police captain in which secrets from government investigations were revealed. Johny Eduardo Pezo Tello was jailed in November of 1998 on a charge of terrorism. The cause was that he had read on his radio program a letter from MRTA (Revolutionary Movement Tupac Amaru). Mr. Pezo Tello had received a call threatening him and his family with serious consequences if he didn’t read the document over the air during his show. He tried to leave the station and report the incident to the police, but two individuals keeping watch outside warned him to do what he had been told or else. He went back to the studio, and only after apologizing to the audience and stating that he did not agree with the ideas of the MRTA, did he read the document. International condemnation of his subsequent arrest was immediate. The Special Rapporteur facilitated all relevant information to Peruvian authorities seeking a suitable solution. Finally the announcer was released. Regarding Mr. Baruch Ivcher’s case, currently pending before the Inter-American Court on Human Rights, the Commission has found that the Peruvian State deprived Mr. Ivcher of his title of nationality in order to remove him from control of Channel 2 "Frecuencia Latina" and thus violated his freedom of expression at a moment in which such Station reported on serious human rights violations and acts of corruption. Cuba must be discussed separately from the other countries of the hemisphere. The absence of democracy in Cuba clearly impinges on the right to freedom of expression. Until a move toward democracy is made, significantly broadening the basic rights of all Cubans, it will be impossible to develop freedom of expression as consecrated by the American Declaration and the American Convention. The Cuban Constitution contains a clause prohibiting any of the media, including the written press, from being privately appropriated "in order to make sure that it will be used exclusively for the working people and in the interest of society." The government censures all foreign material attempting to enter the island, in addition to arbitrarily denying entry to foreign journalists. The Inter-American Press Association reported that over 80 foreign journalists had been denied visas to enter the country prior to the Pope’s visit to Cuba, for the reason that they had previously been critical of the country’s authorities. Thus the government uses the arbitrary granting of visas as another way of influencing and controlling the news coverage within the country. Chapter VII of the Cuban Constitution on fundamental guarantees, duties, and rights drastically curtails the formal political rights that are essential in any democratic regime and are enshrined in Article XX of the American Declaration of the Rights and Duties of Man. Article 53 recognizes freedom of expression and press, but only "in accordance with the purposes of a socialist society." Freedom of expression is also limited in Article 39(ch), which states that artistic freedom exists "provided that its content is not contrary to the Revolution." The Constitution also contains the legal foundations for censorship, since it is the state that determines whether oral or written expression or art is contrary to the Revolution. The Constitution also contains the legal basis for the state to direct all activities in the area of art, culture, or the press, all of which is in contradiction with Article IV of the American Declaration. Domestic legislation on freedom of expression contains a large number of criminal laws that repress freedom of expression it by imposing punishment in the form of prison terms. The punishment for publishing "anti-government propaganda" is imprisonment for one year. Last year, the National People’s Assembly approved the Law of National Dignity which, for the first time, punishes the act of transmitting information. Article 8 of that Law establishes that "the weight of the law will fall on all persons who, either directly or indirectly, collaborate with the information media of the enemy … with prison terms ranging from three to ten years…". Finally, in 1999 the "Law for Protection of National Independence and the Economy" was approved in Cuba. The objective of this law is clearly to place even further restrictions on the scant freedom of expression existing in Cuba. The supply, search, or obtaining of information and the introduction into the country of subversive material, or the reproduction or dissemination of such material, are considered crimes, as are the direct collaboration, or collaboration through third parties, with radio or television stations, newspapers, magazines, or other mass media, for the purposes indicated in the Law."58 The law provides for sanctions in the form of prison terms of up to 20 years for the perpetrators of such acts and for their accomplices. To the body of law limiting freedom of expression is added the constant practice of persecution and intimidation of all persons who express opinions different from those adopted by the authorities. Recently, in March 1999, four persons were convicted on charges of sedition, for having published a manifesto entitled "The Fatherland is for Everyone" ["La Patria es de Todos"], which criticized the views of the Fifth Congress of the Cuban Communist Party (CCP). The four persons, Marta Beatriz Roque Cabello, Félix Bonne Carcasés, René Gómez Manzano, and Vladimiro Roca Antúnez, were members of the "Internal Dissidence Working Group." Vladimiro Roca Antúnez, a former pilot in the Cuban Air Force, was given a five-year prison term. Félix Bonne Carcasé, 59 years of age, and René Gómez Manzano, a 55 year old attorney, were sentenced to four years in jail. The economist Marta Beatriz Roque Cabello, 53 years of age, was sentenced to three and a half years in jail. These four persons had been in pretrial custody since July 16, 1997. The Rapporteur will continue monitoring the evolution of freedom of expression in the hemisphere, noting the improvements achieved as well as any deterioration and concerns. [ Table of Contents | Previous | Next ] 1 J. S. Mill, "On Liberty" in "On liberty and other writings", edited by Stefan Collini, Cambridge University Press, pages 5 a 115. 2 It is difficult to precisely establish the number of journalist murdered during the past years. In many cases, it is not possible to determine the motive of the murders with absolute certainty. This number is used by different organizations involved in the defense of freedom of expression around the world. 3 Inter-American Court of Human Rights, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights), Advisory Opinion OC-5/85 of November 13, 1985. Series A No. 5, para. 48. Annex A 4 The Rapporteur considers also that poverty and social exclusion, affecting vast sectors of society in the Americas have an impact on the freedom of expression of their citizens. Their voices and the progressive development of human rights as a whole are postponed. 5 Articles 40 and 41 of the American Convention on Human Rights and Article 18 of the Statute of the Inter-American Commission of Human Rights. 6 See, "Report on the Situation of the Human Rights in Mexico" OEA/Ser.L/V/II.100 Doc. 7 rev. 1, September 24, 1998;"Third Report on the human Rights Situation in Colombia" OEA/Ser.L/V/II.102 Doc.9 rev. 26 February 1999. 7 Article 29 of the Regulations of the Commission states, "In urgent cases, when it becomes necessary to avoid irreparable damage to persons, the Commission may request that provisional measures be taken to avoid irreparable damage in cases where the denounced facts are true. 8 In general terms the Commission described the duties and mandate of the Office as including 1) The preparation of a report on the general situation of freedom of expression in the hemisphere. Said report will be presented to the Commission for consideration and inclusion in the IACHR Annual Report. 2) The preparation of specific reports by subject matter. 3) Collection of all information needed for the elaboration of said reports. 4) The organization of activities for the promotion of human rights as charged by the Commission, including but not limited to presenting papers at conferences and seminars, instructing civil servants, professionals and students on the work being done by the Commission in its area of expertise and preparing promotional material. 5) The expeditious presentation of information to the Commission on urgent situations that call for the adoption of precautionary measures or of provisional measures that the Commission can request from the Inter-American Court to avoid irreparable harm to human rights from occurring. 6) The provision of information regarding individual cases related to freedom of expression that comes before the Commission. 9 Declaration of Santiago, Second Summit of the Americas, April 18-19, 1998, Santiago, Chile. 10 Plan of Action, Second Summit of the Americas, April 18-19, 1998, Santiago, Chile. 11 The IAPA is an organization bringing together representatives of the main print media of the hemisphere. 12 The resolution states: WHEREAS the Inter-American Commission on Human Rights of the Organization of American States (OAS) has created the position of special Rapporteur for freedom of expression and appointed lawyer Santiago Canton to that office the IAPA has always been interested in the creation of this position of Rapporteur for the maintenance and guarantee of freedom of expression and press freedom in the hemisphere and to remain vigilant lest there be abuse of journalists and newspapers THE IAPA GENERAL ASSEMBLY RESOLVES to congratulate itself on the creation of the position of special rapporteur for freedom of expression within the OAS’ Inter-American Commission on Human Rights to express to the OAS its support for the special rapporteur in his work to maintain freedom of expression and press freedom in the hemisphere to place on record its wish to have an ongoing cooperative relationship with the position of the rapporteur and to call upon the holder of that office to come up with concrete ways in which that collaboration may be brought about." 13 This seminar is held three times per year, in Colombia, Guatemala and Bolivia respectively. Its purpose is to train members of the media in matters of freedom of expression and democracy. 14 Article XiX is a London based NGO dedicated to studying freedom of expression in the world. 15 This is one of the most important international groups working to defend freedom of expression. It is composed of the Committee to Protect Journalists (CPJ), the Commonwealth Press Union (CPU), the Inter-American Press Association (IAPA), the International Association of Broadcasting (IAB), the International Press Federation (IPF), the International Press Institute (IPI), the North American Broadcasters Association (NABA), the World Association of Newspapers (WAN) and the World Press Freedom Committee (WPFC). 16 Annex E (1). 17 Article 14 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. 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. 18 See, Inter-American Court of Human Rights, Case Velásquez Rodríguez, Judgement of July 29, 1988, Serie C N 4 par. 169 –170. 19 Inter-American Court of human Rights, Velásquez Rodríguez Case, Judgement of July 29, 1988, Serie C N 4 para. 166. 20 Article 2 of the American Convention reads: "Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms. 21.Inter-American Court of Human Rights, Velásquez Rodríguez Case, Judgement of July 29, 1988, Serie C N 4 para. 169 –170. 22 See, Grossman, Claudio; Goldman, Robert K.; Martin, Claudia; Rodríguez Pinzon, Diego; Zwaak, Leo; Repertorio de Jurisprudencia del Sistema Interamericano de Derechos Humanos" Tomos I y II; Center for Human Rights and International Humanitarian Law, Washington College of Law, American University. 23 Inter-American Court of Human Rights, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights), Advisory Opinion OC-5/85 of November 13, 1985. Series A No. 5, para. 30. Annex A. 24 Ibid. para. 31 25 Ibid. para. 32 26 Ibid. para. 33 27 Ibid. para. 34 28 Ibid. para. 36 29 Ibid. para. 37 30 Ibid para. 38 31 Ibid para. 39 32 Ibid para. 64 33 Ibid para. 46 34 Ibid para. 47 35 Ibid para. 48 36 Ibid para. 53 37 Ibid para. 54 38 Ibid para. 55 39 Ibid para. 56 40 Inter-American Commission on Human Rights, 1996 Annual Report, Report No. 11/96 (Case No. 11.230 – Francisco Martorell), Chile, para. 55. 41 Ibid. para. 56. 42 Ibid. paras. 58 and 59. 43 Inter-American Commission on Human Rights, 1995 Annual Report, Report No. 2/96 (Case No. 10.325 – Steve Clark), Grenada. 44 IACHR Report No. 2/96, paras. 8 and 9. 45 IACHR Report No. 11/96, para. 61. 46 Idem, paras. 67-70. 47 Inter-American Court of Human Rights, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights), Advisory Opinion OC-5/85 of November 13, 1985. Series A No. 5, para. 70. 48 Ibid para. 71 49 Inter-American Court of Human Rights, Press Release 3/3, 1999. 50 See, pages 50 to 57. 51 See, pages 47 to 50. 52 Those convicted under this law can be sentenced to imprisonment, demotion or exile. See Article 7 of Law 2.927. 53 The Chapultepec Declaration, drafted by the Inter-American Press Association, contains 10 fundamental principles for the protection of freedom of expression in our hemisphere. Prominent persons are signing it in growing numbers. Numerous Heads of State and Government of the hemisphere have signed it. See Annex F. 54 IACHR Press Release 20/98 was issued at the end of the Commissions on-site visit to Peru to examine the rule of law in the country. In it, the Commission said:
58 Law for Protection of the National Independence of Cuba, Articles 1, 5(1), and 6(1), February 17, 1999.
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