Freedom of Expression
Prior Censorship
Article 13 of the Convention prohibits prior censorship, except in the case of regulating access to public entertainments for "the moral protection of childhood and adolescence."[1] The Commission and the Court have strictly interpreted this provision in contentious cases.[2]
The Commission first addressed the issue of prior censorship in a 1996 case from Grenada.[3] In that case, the State confiscated four boxes of books at the airport in Grenada upon the petitioners’ entry from the United States. The Commission noted that by seizing and banning the books, the State imposed prior censorship. The Commission further noted that the State had not provided any arguments that would justify this censorship. Therefore, it found that the State had violated Article 13. In issuing its opinion, the Commission emphasized the dual nature of Article 13 in considering that this action inhibited the petitioners’ right to freedom of expression as well as that of others, who could not receive the information and ideas contained in the books.
The Commission further developed its jurisprudence on prior censorship in the 1996 case of Francisco Martorell.[4] In that case, a Chilean court had issued an injunction preventing the publication of a book the night before it was to be released. The book addressed the circumstances leading to the departure of a former Argentine ambassador to Chile. Francisco Martorell, the author of the book, appealed the decision to the Supreme Court, which denied the appeal and banned the circulation of the book. Charges were also filed against Mr. Martorell for criminal defamation and slander. The Commission found a violation of Article 13, reasoning that the injunction against the book constituted prior censorship. The Commission noted:
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.[5]
The Commission acknowledged the State’s observation that Article 11 of the Convention guarantees the right to honor and dignity, but rejected the argument that this right would justify prior censorship. The Commission stated that “the organs of the State cannot interpret the provisions of Article 11 in a manner that violates Article 13, which prohibits prior censorship.”[6] The Commission continued noting that “any potential conflict in the application of Articles 11 and 13 of the Convention can be resolved by resorting to the language of Article 13 itself[.]”[7]
In the “Last Temptation of Christ” Case,[8] the Inter-American Court had the opportunity to address fully the scope of the prohibition on prior censorship in Article 13. The case involved the prohibition in Chile of the exhibition of the film “The Last Temptation of Christ.” The Court noted that Article 13 does not allow prior censorship, with the exception of prior censorship of public entertainments “for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.”[9] As the ban on the film applied to adults as well as to children and adolescents, it violated the Article 13 prohibition of prior censorship.
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[1] American Convention on Human Rights, Article 13.4.
[2] See OC-5/85, supra, para. 54, noting that the violation of the right to freedom of expression is particularly extreme in the case of prior censorship because it not only "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."
[3] Case 10.325, Report Nº 2/96, Grenada, Steve Clark et al., March 1, 1996
[4] Case 11.230, Report Nº 11/96, Chile, Francisco Martorell, May 3, 1996
[5] Id. para.56.
[6] Id. para. 72
[7] Id. para. 75. In other words, subsequent liability is the means by which the State should address issues of protection of honor and dignity. The Commission did not address in this opinion the compatibility of criminal libel and slander laws with Article 13. See section 3(d) of this chapter and Chapter V of this Report for a discussion of the jurisprudence on this issue.
[8] Inter-American Court of Human Rights, Case of the Last Temptation of Christ (Olmedo Bustos et al. vs. Chile), Judgment of February 5, 2001.
[9] American Convention on Human Rights, Article 13.4.