Freedom of Expression
Press Release 89/03
PRELIMINARY OBSERVATIONS OF THE SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESSION, UPON CONCLUDING HIS OFFICIAL VISIT TO MEXICO
Upon concluding his official visit to the Republic of United Mexican States, Eduardo Bertoni, Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR), Organization of American States (OAS), held a press conference to outline his preliminary observations on the status of freedom of expression in Mexico .
The visit, which was made at the invitation of President Vicente Fox Quesada’s government, ran from Monday, August 18th to Tuesday, August 26th, 2003. The purpose was to gather information on the status of freedom of expression in the country. Debora Benchoam, a specialist in the Office of the Rapporteur for Freedom of Expression, accompanied the Special Rapporteur.
The Office of Special Rapporteur for Freedom of Expression (“the Office of Rapporteur”) is a permanent office that operates independently with its own budget, within the legal framework of the Inter-American Commission on Human Rights (IACHR). The Office of Rapporteur was established by the IACHR pursuant to its powers and authority. The IACHR is a principal organ of the Organization of American States (OAS), with a mandate to promote respect for human rights in the hemisphere. Its powers are derived from the American Convention on Human Rights and the OAS Charter, instruments ratified by Mexico .
The Office of Rapporteur was supported by the heads of state and government of the hemisphere, who established the Office of Rapporteur during the Second Summit of the Americas held in Santiago , Chile in April 1998. At the Third Summit of the Americas held in Quebec , Canada , the heads of state and government ratified the Rapporteur’s mandate. The objectives of the Office of Rapporteur include heightening awareness of the need to ensure full respect for freedom of expression in the hemisphere, in view of the fundamental role it plays in consolidating and developing democracy and in reporting violations of and protecting other human rights, and making specific recommendations to member states on matters related to freedom of expression, so that they can gradually adopt measures to further it.
During his visit, the Rapporteur had a busy agenda, that included meetings with federal and local officials in the three branches of government. The following authorities were interviewed, among others: Ministers from the National Supreme Court of Justice; Dr. Mario I. Álvarez Ledesma, Assistant Prosecutor for Human Rights, Care of Victims, and Community Services of the PGR [Procuración General de la República]; Daniel Francisco Cabeza de Vaca Hernández, Under Secretary for Legal Matters and Human Rights in the Secretariat of the Interior; Ricardo Sepúlveda Iguiniz, Head of the Unit for Protection and Defense of Human Rights, Secretariat of the Interior; José Luis Durán Reveles, Under Secretary for Regulatory Policy and the Media in the Secretariat of the Interior; Fátima Fernández Christlieb, Director General of Communications Policy, Secretariat of the Interior;. Concepción Guadalupe Garza Rodríguez, Director General of the Press, Secretariat of the Interior; Héctor J. Villareal Ordóñez, Director General of Radio, Television, and Cinematography, Secretariat of the Interior; Patricia Olamendi, Under Secretary for Global Matters, Secretariat of Foreign Affairs; Juan José Camacho, Director General of Human Rights, Secretariat of Foreign Affairs; Jorge Álvarez Hoth, Under Secretary for Radio and Television, Secretariat of Communications and Transportation; Alonso Arturo López Torres, Assistant Director of Information and International Affairs, Secretariat of Communications and Transportation; María Marván, President of the Council of the Federal Institute for Access to Information; Ambassador Salvador Campos, Executive Secretary of the National Human Rights Commission; Guillermo Ibarra, General Coordinator of Communications and Projects, National Human Rights Commission ; and, Xochitl Gálvez Ruiz, Director General of the National Human Rights Commission for Indigenous Peoples.
The local officials interviewed included the following: Alejandro Encinas, Secretary General of the Government of the Federal District; Emilio Álvarez Icaza, Federal District Human Rights Commission; Sergio Antonio Martínez Garza, Government Secretary of Chihuahua State; Jesús A. Piñón Jiménez, Assistant Public Prosecutor, Chihuahua State; Mayor Luis León Aponte, Secretary General of Government, Guerrero State; Antonio Nogueda Carvajal, Assistant Prosecutor for Criminal Proceedings of Chilpancingo, Guerrero State; Juan Alarcón, President of the Commission for Defense of Human Rights, Guerrero State; Pedro Raúl López Hernández, President of the Human Rights Commission, Chiapas State.
The Rapporteur also met with National Senators Eric Luis Rubio Bartgel, Felipe de Jesús Vicencio, and Javier Corral Jurado, and with Marco Antonio Michel Díaz and José Buendía, Deputies of the Federal District .
The Special Rapporteur also received information and statements from journalists, human rights defenders, and representatives and directors of the media and syndicated associations of journalists. Interviews were also conducted with nongovernmental human rights organizations and other representatives of civil society on national and local level, including the following: Mexican Network for Protection of Journalists and the Media; the Mexican Academy for Human Rights; the Mexican Commission for Defense and Promotion of Human Rights; the World Association of Community Radios; the National Chamber of the Radio and Television Industry; the Commission for Solidarity and Defense of Human Rights and other human rights organizations, journalists, and media representatives from Chihuahua; and, the National Syndicate of Press Editors, the Guerrero Association of Journalists, the Single Syndicate of Media Workers, and the Tlachinollan Human Rights Center, all in Guerrero. The Rapporteur also maintained contact with the United Nations Office of the High Commissioner for Human Rights in Mexico .
During his stay in Mexico , the Rapporteur carried out other activities to promote the right to freedom of expression. Eduardo Bertoni gave two talks: the first at Universidad Iberoamericana on “Terrorism and Freedom of Expression in the Americas;” and, the second, a speech given at the closing session of the seminar on “Freedom of Expression and international protection mechanisms,” in which the Rapporteur referred to international standards for protection of freedom of expression. This second event took place at the Universidad del Claustro de Sor Juana.
The Rapporteur is grateful to the government of President Vicente Fox Quesada for allowing him to conduct his work with complete independence and autonomy, and for the interest it has shown in helping to find a solution to some of the problems that were discussed during the meetings. The Rapporteur would like to express particular appreciation to the Human Rights Department of the Secretariat of Foreign Affairs, for accompanying him during the visits. He is also grateful to the officials of Guerrero and ChihuahuaStates , for the courtesies they extended and the facilities they provided during the Rapporteur’s visit to those states. Finally, the Rapporteur would like to express his thanks to the representatives of civil society, human rights organizations, and the media, and to journalists for the valuable information they provided him during his visits.
The Special Rapporteur will report to the IACHR plenary on the visit in the course of their next session, to be held in October. The information received during the visit will be carefully examined by the Office of Rapporteur, with a view to including it in the report for the present year, to be submitted in due time to the IACHR for its consideration.
In keeping with the practice followed by other IACHR Rapporteurs upon completion of their visits, and with a view to helping ensure greater protection of freedom of expression in Mexico , the Special Rapporteur would like to put out a series of preliminary observations and considerations. The purpose of these observations is to help the Mexican government to gradually adopt measures to bring its internal laws and practices into line with the terms of Article 13 of the American Convention on Human Rights in the area of freedom of expression, as interpreted in the Declaration of Principles on Freedom of Expression that the IACHR adopted in 2000. The Declaration is an important document in interpreting Article 13 of the American Convention on Human Rights. Its adoption is not only an indication of the significance attached to protecting freedom of expression in the Americas, but it also incorporates into the inter-American system international standards for a more effective defense of the exercise of this right.
General considerations
The Special Rapporteur would like to note that in 1998, the IACHR issued a series of recommendations as a result of a visit to Mexico in July 1996. The Rapporteur has used these recommendations as a basis for his observations on this visit. They consist of the following recommendations to the State:
“That it advocate a review of the legislation regulating Articles 6 and 7 of the Mexican Constitution, in an open and democratic way, so that the guarantees established in those Articles are fully effective, in accordance with the right to freedom of thought and expression, enshrined in the American Convention.
“That it adopt the necessary measures to punish perpetrators of crimes committed against persons exercising the right to freedom of expression, including a prompt, effective, impartial investigation of any reports elated to harassment of journalists, human rights defenders, and members of social organizations.
“That it offer all guarantees to ensure that both Mexican and foreign human rights defenders may perform their important work to promote and defend those rights without any abusive interference on the part of the authorities, and that, more specifically, it review reports of arbitrary expulsions in the cases of foreigners who were legally residing in Mexican territory, to ensure that such decisions strictly comply with the rules of due process stipulated in domestic legislation and in international instruments in force.”
Bearing in mind these recommendations by the IACHR, the Rapporteur received statements and information on various aspects of freedom of expression related to these recommendations. Among other things, the aspects referred to legislative processes linked to laws on access to information, radio and television, and the press, and proposals for an integral reform of the media, and to the proposed amendment to Article 33 of the Constitution. The Rapporteur also received information on specific acts that could jeopardize the safe practice of freedom of expression of social communicators, such as use of criminal defamation laws, or subpoenas issued by courts to journalists requiring them to disclose their sources of information.
Based on the testimony received during the visit, the present preliminary observations and considerations cover other problems which were evidenced in the abundant information and documentation gathered during the stay in Mexico, and in information reported by the Rapporteur in its annual reports and press releases on freedom of expression in that country. Other aspects referred to in the preliminary observations and considerations include reports on the lack of professional ethics of journalists and owners of the media, monopolies in the communication media, the handling of official advertising by the media, the right of reply, working conditions of persons employed by the communication media, and the problem of community and indigenous radio stations.
As we will indicate in these preliminary observations, some noteworthy progress has been made in carrying out the recommendations of the IACHR. The Office of Rapporteur appreciates the government’s efforts in taking the initiatives that have led to this progress, but at the same time it would point out that there are still problems that must be dealt with to bring Mexico fully into compliance with the recommendations. It is also important to explain that many of these problems fall within the jurisdiction of local authorities. On this point, and based on the information received, the Rapporteur notes that the full exercise of freedom of expression is more difficult in the interior of the country than in the Federal District .
As we state further on, the process providing for the tools to permit access to public information in federal areas and in some states is encouraging. Another encouraging sign is that physical attacks on journalists, although still a source of concern, have not increased. The ample debate on ideas and opinions noted in the media is also an auspicious sign.
However, there are still sectors of government service that encourage secrecy, as evidenced by regulations passed by the legislature and the federal courts and by the interpretation of the National Human Rights Commission. It is counterproductive that the leveling-off of acts of physical aggression against journalists is being replaced by harassment, through the arbitrary or abusive use of legitimate tools of the government, such as criminal defamation laws, or subpoenas requiring journalists to disclose their information sources. Nor has progress been made in reforms to enhance the transparency of official advertising, which has proven to be a problem in some states. No concrete results have yet been seen, despite efforts made by the Dialogue on the Integral Revision of Legislation on Electronic Media. The process initiated through this effort was interrupted last year. Some of the initiatives of the Dialogue were geared to limiting discretionality in granting licenses and permits in the area of radio and television, taking into account cultural diversity in the national territory. Finally, investigations into murders of journalists are still pending.
For the reasons given in the preceding paragraph, and with all due appreciation for the efforts by the State to make progress in certain areas noted during the visit, in an endeavor to comply with the IACHR’s recommendations, the Rapporteur attaches the utmost important to the need for the State to persist in and reinforce its commitment to defend freedom of expression and other human rights. The right to freedom of expression includes the right of all people to seek, receive, and disseminate information and ideas of all kinds, and this is a key requirement for the development and strengthening of democratic societies. In addition to contributing to the protection of other fundamental rights, freedom of expression plays a key role in controlling government management, since it exposes abuses of power, and violations of the law committed to the detriment of citizens. When freedom of expression is restricted or limited, democracy becomes a mere formal institutional arrangement in which citizen participation is not effective.
The Rapporteur places stock in the creation of the Committee on Government Policy in the area of Human Rights, and understands that many of the initiatives related to the issues discussed in these preliminary observations could be channeled satisfactorily and appropriately through that Committee, provided a subcommittee or working group is set up by the Committee to deal with matters related to guaranteeing full respect for freedom of expression.
The Rapporteur for Freedom of Expression will now set forth his preliminary observations on impressions gathered during the visit.
Access to information
Among the advances achieved in recent times in adapting internal laws to international standards guaranteeing respect for freedom of expression, it is important to note the recent entry into force of the Federal Law on Transparency and Access to Public Governmental Information.
The Office of Rapporteur has taken various opportunities to highlight the importance of right of access to information, as a way of strengthening democracy and achieving policies of transparency, through control of government management. In a democratic system, citizens exercise their constitutional rights of political participation, voting, education, and association through ample freedom of expression and free access to information, among other ways. In view of the importance of access to public information for the functioning of democracy, it is essential for governments to develop laws to help all persons obtain such information. This means that the legal provisions should be clear and accessible to the people. The costs for persons who request information should be reasonable and related to the type of request. The State should process such requests promptly and impartially. In the event a request is turned down, the State should explain the reason for the rejection and offer an opportunity for appeal with an independent institution. Exceptions should be specifically established by law, and be closely related to one of the legitimate reasons stipulated in Article 13 of the American Convention. Insofar as exceptions are concerned, the requirement of need implies that the state may only restrict access to information if the damage to one of its legitimate interests as a result of the disclosure would be substantial.
The Rapporteur notes that since promulgation of the Federal Transparency Law, a process has begun in certain sectors of Mexican society to recognize the importance of guaranteeing this right, as an essential tool for achieving greater transparency in government operations and for combating corruption. The Rapporteur had an opportunity during his visit to meet with officials from the Federal Institute of Access to Public Information (IFAI), an agency responsible for interpreting the Transparency Law in an administrative jurisdiction, and for reviewing criteria for classification and declassification of confidential information. According to what that Institute reported, in the past two months, approximately 12,000 requests were directed to federal authorities, of which about 130 are currently being reviewed by the IFAI.
Notwithstanding the legislative advances in the area of access to information, as evidenced by the federal law and its regulations, and despite the encouraging indications of the exercise of this right by Mexican society in this initial stage, the Rapporteur noted that this process is not progressing equally well throughout the country. By virtue of Article 61 of the Law on Transparency and Access to Public Information, the Federal Legislative Branch, the Federal Judiciary, through the National Supreme Court of Justice, and independent constitutional organs are responsible for issuing their own regulations to establish “the criteria and institutional procedures to provide individuals with access to information, in accordance with the principles and terms established by law.” According to information received, it would appear that the principle of maximum disclosure and transparency set forth in that law is not being strictly followed by either the Legislative Branch, the Judicial Branch, or by certain autonomous constitutional agencies, such as the National Human Rights Commission.
As regards the Legislature, it has been noted that regulations for the Chamber of Deputies are different from regulations for the Senate. These regulations were issued separately by each of the Houses. However, the Rapporteur notes preliminarily that they are not complying with certain basic principles that guarantee access to public information, such as the right to appeal to administrative institutions that guarantee their independence, in the event that information is denied by the Chamber of Deputies. Moreover, the Rapporteur heard of instances in which requests for information submitted to the National Human Rights Commission were turned down. The Rapporteur is concerned that this agency for the protection of human rights would interpret the federal transparency law in force in Mexico in a way not in keeping with its own principles.
Finally, in the judicial sector, by Supreme Court Decision No. 9/2003, certain provisions wee established to regulate access to information in the possession of that Branch of the MexicanState . From a preliminary analysis, the Rapporteur notes that the interpretation of some of the articles of that decision could jeopardize access to information, since it allows certain information to be considered as confidential in criminal or family proceedings for an excessively long period of time. In the opinion of the Rapporteur, certain criminal matters may involve crimes linked to subjects of keen public interest, such as corruption, and so it is important for the people to have full knowledge of them in a democratic society, without having this entail a violation of fundamental rights or guarantees.
In various states visited by the Rapporteur, including Guerrero and Chihuahua , it was also reported that laws on access to information had not been promulgated, although bills had been introduced in their legislatures. The Rapporteur hopes that progress in promulgating and implementing these laws and the pertinent regulations governing access to public information will continue in all the states of the Republic, in keeping with international standards in this area. During his visit, the Rapporteur also learned that although there is a law on access to public information in force in the Federal District , the process for full implementation of that law has been delayed. In view of the importance of this right, as a way of ensuring the transparency of the government administration, the Rapporteur trusts that problems preventing full implementation of the mechanism for access to public information in the Federal District will be resolved expeditiously, with a view to ensuring the prompt, effective exercise of this right by Mexican citizens, through appropriate instruments.
During the visit, both government officials and sectors of civil society referred to the need to guarantee protection of personal data in public and private records, by issuing “habeas data” regulations that are more precise than under the Federal Law on Transparency and Access to Public Governmental Information. This right of access to and control of personal data is a fundamental right in many spheres of life, since the absence of judicial mechanisms allowing for the correction, updating, or cancellation of data directly affect the right to privacy, honor, the right to a personal identity, the right to ownership; property, and the right to control the compilation of data obtained. In view of the importance of ensuring that individuals can protect their personal data in public and private records, the Rapporteur hopes that the steps initiated to promulgate a law regulating “habeas data” will be pursued.
In conclusion, in relation to access to public information, the Rapporteur notes the advances indicated, but, as a preliminary consideration, would point out that the culture of secrecy that persists in some sectors of government should be categorically rejected, in order to ensure a truly transparent public administration on both federal and local levels. Information and promotional campaigns could help eradicate this culture once and for all.
Defamation laws
The threat of criminal sanctions for speaking out, especially in cases involving criticism of officials, or public or private persons involved voluntarily in matters of public interest, could have a paralyzing effect on persons who wish to express their views, and lead to situations of self-censorship that are not consistent with a democratic system. In this regard, Principle 10 of the Declaration of Principles on Freedom of Expression includes the Commission’s interpretation of privacy laws, and states that privacy laws should not inhibit or restrict investigation and dissemination of information of public interest. The protection of a person’s reputation should only be guaranteed through civil sanctions in those cases in which the person offended is a public official, or a public or private person who has voluntarily become involved in matters of public interest. In addition, in these cases, it must be proven that in disseminating the news, the social communicator had the specific intent to inflict harm, was fully aware that false news was disseminated, or acted with gross negligence in efforts to determine the truth or falsity of such news.
According to information received by the Rapporteur during and prior to his visit, use of the criminal offenses of defamation or libel and slander have been permitted, and on occasions certain individuals have been persecuted, harassed, and/or imprisoned for expressing their opinions on matters of public interest. In the course of the year, the Rapporteur has issued press releases on two occasions condemning the detention of Mexican journalists as a result of legal action brought against them for the crime of defamation. According to evidence offered to the Rapporteur, this situation is worse in local courts, or in other words in states in the interior of the country. The Rapporteur received information indicating that journalists working in the Federal District and in the States of Chihuahua and Chiapas who were critical of the government administration had been taken to court on charges of defamation, or had been detained on charges of defamation brought by public officials, political leaders, or private persons involved in public affairs. The Rapporteur will continue to observe these cases, in addition to others that may arise in other places.
On the specific occasion of this visit, the Rapporteur observed with concern that legal action brought for the crime of defamation in the State of Chihuahua could be used to silence and intimidate journalists practicing critical, investigative, or accusatory journalism, and primarily those working in the area of Ciudad Juárez. Another source of concern is that when there are criminal investigations, there is a high degree of discretionality on the part of the Office of Public Prosecutor in that State in implementing arrest warrants, which could lead social communicators who were not certain if they could be arrested to censure themselves. Practices related to punishment for defamation in some cases could involve a clear limit to freedom of expression. During the present visit, the Rapporteur had an opportunity to meet with the Assistant Prosecutor and the Secretary General of Government of Chihuahua and to voice his serious preoccupation over this matter. These officials expressed their respect for freedom of expression and for journalists. The Rapporteur thanked them for their words and is confident that they will be reflected in policies to strengthen the right to freedom of expression in Chihuahua .
The Rapporteur was also informed that in ChiapasState , around twenty journalists had been the object of similar criminal proceedings on charges of defamation instituted by public officials or private persons involved in matters of public interest. The Rapporteur notes that society should have the opportunity to discuss freely, without fear of arbitrary retaliation, not only what is strictly related to the work of government officials, but also other matters pertaining to public persons that are subjects of legitimate public interest.
Although the facts set forth above are only a preliminary account of part of the information received, the Rapporteur considers that in order to ensure an adequate defense of freedom of expression, the Mexican State, on both federal and local levels, should reform its laws on slander and libel so that only civil sanctions could be applied in the case of offenses to public officials related to the performance of their functions, or to public figures or private persons involved voluntarily in matters of public interest. The Rapporteur was encouraged to hear federal officials refer to their intention to study initiatives in this regard, and so the Rapporteur will continue promoting this process. At the same time, the Rapporteur notes that the press law dating back to 1917 should also be revised to take into account the aforesaid parameters, even though it is not being used.
Professional secrecy of journalists
On another issue, the Rapporteur expresses concern over information received to the effect that investigative journalists have been ordered to appear before the Ministerio Público to reveal their investigative sources. Many of these orders or subpoenas could have a detrimental effect on investigative journalism, which in some cases exposes matters related to government corruption or illegal activities of key interest to the public. The Rapporteur noted that these subpoenas or orders existed on both a federal and a local level, and include cases such as the one involving Adriana Varillas, a journalist from Cancún, Maribel Gutiérrez, a reporter and editor of the Guerrero Section of El Sur newspaper, Daniel Morelos, a journalist and the information director of El Universal, and Enrique Méndez, Gustavo Castillo, Rubén Villalpando, Andrea Becerril, Ciro Pérez, and Roberto Garduño, all from the daily paper, La Jornada. In many of the cases, it was reported that in the case of a specific article on a crime, many judicial operators try to make it their own business, and take a shortcut by requiring the journalists to provide data that could be obtained by other means. In the specific case of the subpoenas issued by the Procuración General de la República [Office of the National Public Prosecutor] (PGR) involving journalists from La Jornada newspaper, the Rapporteur received information to the effect that following the complaint filed with the CNDH by six reporters, an administrative proceeding and another criminal proceeding were instituted by the PGR. As a result of the first one, one of the agents of the Ministerio Público was sanctioned, since it was recognized that some of the questions addressed to the journalists by agents of the Miniserio were solely for the purpose of harassing the defendants. The Rapporteur notes that it is important for the Ministerio Público at federal and local levels to have clear rules to prevent the use of these mechanisms for harassment of journalists.
The Rapporteur learned that the National Human Rights Commission submitted a proposal to amend the Federal Code of Criminal Procedure to protect the right of journalists to professional secrecy, among other things. The Rapporteur welcomes any initiative designed to protect the information sources of journalists, since freedom of expression is also understood to cover the right of journalists to maintain the confidentiality of their sources of information. The Rapporteur trusts that the federal government will continue its efforts to adopt a law guaranteeing the professional secrecy of journalists with regard to their information sources, in accordance with international standards in this area, and that similar initiatives will be pursued at a local level. In this regard, the Rapporteur notes that professional confidentiality has to do with the granting of legal guarantees to ensure anonymity and avoid possible retaliation that could result from divulging certain information. Therefore, confidentiality is a key part of the work of journalists and of the role that society has conferred on journalists to provide information on matters of public interest. The Declaration of Principles on Freedom of Expression establishes in Principle 8 that: “Every social communicator has the right to keep his/her source of information, notes, personal and professional archives confidential.”
Placement of official advertising
Principle 13 of the Declaration of Principles on Freedom of Expression indicates that the arbitrary and discriminatory placement of official advertising, with the intent to put pressure on and punish or reward and provide privileges to social communicators because of the opinions they express threatens freedom of expression and must be prohibited by law. The communication media have the right to carry out their role in an independent manner. Direct or indirect pressures exerted upon social communicators to stifle the dissemination of information are incompatible with freedom of expression.
Contrary to this principle, the Rapporteur corroborated during visits to the States of Chihuahua and Guerrero that official advertising was being placed in a discretional way, without clear parameters and with certain signs of arbitrariness. The Rapporteur noted this situation with regard to the newspapers El Sur of Guerrero and El Norte of Juárez, both of which are openly critical of the government. The Special Rapporteur urges all state agencies to modify these practices and to establish a clear, fair, and objective criterion for determining how to distribute official advertising. In no case may official advertising be used for the intention of harming or favoring one means of communication over another.
Electronic communications
The Rapporteur noted that there are proposals and debates to amend the radio and television law in force since 1960, and to amend the federal telecommunications law. These laws contain regulations related to exercising freedom of expression, and to some extent they are also laws regulating Articles 6 and 7 of the Mexican Constitution. At the present time, the proposals are being studied by committees of the National Senate, and so the Rapporteur expects to receive information on these proposals in the near future. Legislators are urged to bear in mind the American Convention on Human Rights and the Declaration of Principles on Freedom of Expression during their debates.
The Office of Rapporteur received information that one of the subjects of the debate on revision of legislation pertaining to the electronic media has to do with the need to limit discretionality in granting radio and television licenses and concessions, taking into account the cultural diversity of the national territory. In this regard, the Rapporteur would point out that Principle 12 of the Declaration of Principles on Freedom of Expression states that the concession of radio and television broadcast frequencies should take into account democratic criteria that guarantee equal opportunity of access for all individuals. The debate in Mexico on granting licenses to the so-called “community and indigenous radio stations” is related to this issue.
The Office of Rapporteur welcomed the willingness and commitment of the FederalState to seek agreements among all sectors designed to resolve some of the conflicts in this area, which are not new. The Rapporteur recognizes the complexity of the matter, and it therefore appreciates the initiatives to solve the problems involved. The Rapporteur will continue to follow the situation, and reiterates its intention to cooperate with the authorities and members of civil society. In this regard, and as stated by the Office of the Rapporteur in its reports approved by the IACHR, in view of the importance of these stations for exercising freedom of express by communities, it is unacceptable to establish discriminatory legal frameworks that impede the concession of community radio frequencies. Having said this, there is a technological aspect that cannot be ignored. For better use of the radio and television waves in the range, the International Telecommunications Union (ITU) distributes groups of frequencies to countries, so that they can then take responsibility for management in their territory, and thereby avoid interference among telecommunications services, among other things. The Rapporteur is of the opinion that the MexicanState , as manager of its radio waves, should foster regulations that allow it to assign them on the basis of democratic criteria that guarantee equal opportunity of access for all individuals.
Another issue on which the Office of Rapporteur received information, which has to do with concession of radio and television frequency licenses, is linked to accusations that there is a tendency to concentrate ownership of television and radio channels. As a contribution to this debate, and without prejudice to a further analysis of these reports, the Office of Rapporteur would like to point out that the Inter-American Court of Human Rights has determined that a plurality of media and the prohibition of any monopoly in this area, whatever form it should take, is indispensable for the exercise of freedom of expression. Moreover, and also as a contribution to this debate, the Rapporteur would point out the provisions of Principle 12 of the Declaration of Principles on Freedom of Expression, having to do with monopolies and oligopolies in the ownership and control of the communication media. It states that they should be subject to anti-trust laws, as they conspire against democracy by limiting the plurality and diversity which ensure the full exercise of people’s right to information, but that in no case should such laws apply exclusively to the media. In keeping with the international standard in this area, and with Article 28 of the Political Constitution of Mexico, the debate taking place with a view to providing a full guarantee for the exercise of freedom of expression and information for all of Mexican society appears to be a good sign.
Attacks on and threats to journalists
During this visit, the Rapporteur noted that there was a large-scale, eloquent debate on ideas offered through the communication media. In the opinion of the Rapporteur, this debate is unquestionably of critical importance to evaluating freedom of expression. As a preliminary observation, the Rapporteur notes that there has been progress on freedom of expression in Mexico, in comparison with past decades.
However, freedom of expression does not only entail the opportunity to express ideas and opinions, but also the possibility to express ideas freely, without suffering the consequences, ranging from homicide to aggression. The State is responsible for guaranteeing an environment conducive to the full exercise of freedom of expression. In this regard, the Rapporteur again highlights the State’s obligation to conduct serious, impartial, and effective investigations into the murder of journalists. Unfortunately, the Rapporteur noted that many murders referred to in the annual reports of the IACHR have not been fully clarified.
Moreover, in the course of the visit the Rapporteur received information relating that journalists, photographers, and human rights defenders had in recent months been subjected to attacks and threats in the interior of the country, in the States of Chihuahua, Guerrero, and Chiapas , among others. The Rapporteur notes that in these cases, the attacks were designed to silence reports and investigations pertaining to violations of fundamental rights against women in Ciudad Juárez, and investigations into drug trafficking, or on politically sensitive issues. The Rapporteur also received information that indicates that some of this intimidation included attacks on investigative journalists and photographers in areas close to military checkpoints in the zones of Guerrero and Chiapas , when they were endeavoring to document irregular operations on the part of the Army. In these cases, there were reports indicating the involvement of police or army personnel among the aggressors. The Rapporteur once again would refer to the need to investigate and punish persons responsible for these acts of intimidation. The failure to investigate these acts of intimidation contributes to creating an atmosphere of fear and restricts the full exercise of freedom of expression and investigations in those states, while discouraging citizens from reporting human rights violations or leading them to censure themselves. This in turn has a direct impact on freedom of expression, by sending a message of encouragement to the perpetrators of these crimes, who are protected by the absence of an investigation, or a slow investigation, allowing them to continue their activities.
Despite what has been said with regard to physical attacks, and the fact that they are of great concern to the Rapporteur, it is encouraging that in general, they have not been on the rise. The Rapporteur hopes that government action will continue to ensure this trend.
The role of the communication media
During this visit, the Rapporteur was repeatedly informed about the difficult working conditions of employees of public and private communication media. The Rapporteur highlights the importance of considering policies to improve the working conditions of social communicators. They are the first and the primary link in the communication chain. Inadequate working conditions impede their work, and this has a negative repercussion on the right of all Mexicans to information.
Moreover, various persons indicated that they rejected what they term the abusive and unethical exercise of freedom of the press. In the states visited, the Rapporteur received information on the use of some local communication media as instruments to defend personal or economic interests, or to undermine the honor of persons, to the detriment of the right of the Mexican people to information. In view of the seriousness of these accusations, the Rapporteur would remind journalists and owners of Mexican communication media that they should bear in mind both the need to maintain their credibility vis-à-vis the public, which is key to their survival, and the important role that the press plays in a democratic society. In the Plan of Action of the Third Summit of the Americas held in April 2001 in Quebec , Canada , the heads of state and government said that governments should promote self-regulation of the media. Self-regulation is a challenge for the press in the hemisphere. It can be achieved by various ways and means: codes of ethics, style books, bylaws on editing, public defenders, information councils, and the like. What is clear, however, is that it is not up to the State to impose the rules of ethical conduct which are essential to the work of social communicators.
Various sectors of society have called for implementation of the right to reply, in view of the abuses reported in the media. The Rapporteur cannot fail to note the controversy that arises from the scope given to the right to reply, as compared with the right to freedom of expression. Among the arguments encountered are ones that hold that the right to reply limits freedom of expression by forcing the media to disseminate free of charge information that does not necessarily agree with the editorial line of the media. In contrast, there are those who believe that the right to reply reinforces freedom of expression, because it permits and fosters a greater exchange of information. Consequently, the Rapporteur is of the opinion that in the event an in-depth debate is initiated on legislation on this subject, the scope of the right to reply must be examined closely to make sure that it does not impinge on the right to freedom of expression.
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The Rapporteur for Freedom of Expression will continue to observe closely the situation of freedom of expression in Mexico , and especially the current processes of legislative changes, application by the courts of recent reforms, and any decisions pertaining to matters related to this fundamental right.
The Special Rapporteur for Freedom of Expression once again would like to thank the Mexican government and nongovernmental organizations and institutions of civil society for the cooperation and facilities they provided in preparation for and in carrying out this visit. In addition, the Special Rapporteur would like to reiterate his willingness to continue cooperating with the authorities and civil society, within the framework of applicable instruments, in order to help strengthen internal and international mechanisms for protection of freedom of expression. Finally, the Special Rapporteur would like to express his appreciation to journalists and the media for their interest in and coverage of this visit.
Mexico City , August 26, 2003