Freedom of Expression
Subsequent Liability for Expressions
Article 13(2) of the American Convention, while explicitly prohibiting prior censorship, allows for subsequent penalties to be applied under limited circumstances. Such penalties must be “expressly established by law to the extent necessary to ensure: a. respect for the rights or reputations of others; or b. the protection of national security, public order, or public health or morals."
The appropriate application of the subsequent liability principle was the issue in the 1994 case of Horacio Verbitsky from Argentina.[1] Mr. Verbitzky published an article in which he referred to a minister of the Supreme Court as “disgusting.” As a result of this comment, Mr. Verbitsky was convicted of the crime of “desacato,” or using language that offends, insults or threatens a public official in the performance of his or her official duties. The parties in the case reached a friendly settlement, one of the terms of which provided that the Commission would prepare a report on the compatibility or incompatibility of the desacato law in the Argentine Criminal Code with the provisions of the Pact of San Jose, Costa Rica, including an opinion on whether States Parties to that instrument must harmonize domestic legislation in accordance with the Convention’s Article 2.
The resulting report provides important guidelines for the application of subsequent liability for expressions in the inter-American system.[2] The Commission found that desacato laws were not compatible with the Convention because they lend themselves “to abuse, as a means to silence unpopular ideas and opinions, thereby repressing the debate that is critical to the effective functioning of democratic institutions.”[3] The Commission further stated that desacato laws give a higher level of protection to public officials than is offered to private citizens. This is in direct contravention to the “fundamental principle in a democratic system that holds the government subject to controls, such as public scrutiny, in order to preclude or control abuse of its coercive powers.”[4] Citizens must, therefore, have the right “to criticize and scrutinize the officials’ actions and attitudes in so far as they relate to the public office.”[5] Desacato laws ultimately deter critical speech because individuals will not want to subject themselves to imprisonment or monetary sanctions. Even those laws providing a defense if the accused can prove that the statements were true improperly restrict speech because they do not allow for the fact that much criticism is opinion and therefore not susceptible to proof. Desacato laws cannot be justified by saying that their purpose is to protect “public order” (a permissible purpose for regulation of speech under Article 13), as this is in contravention of the principle that “a properly functioning democracy is indeed the greatest guarantee of public order.”[6] Moreover, there are other, less-restrictive means besides criminal contempt laws by which governmental officials can defend their reputations from unwarranted attacks, such as replying through the media or bringing a civil action against individuals for libel or slander. For all of these reasons, the Commission concluded that desacato laws are incompatible with the Convention and called upon states to repeal these laws.
The Commission’s report also presents certain implications for the reform of criminal libel, slander and defamation laws. Recognition of the fact that public officials are subject to a lesser, rather than greater, degree of protection from public scrutiny and criticism means that the distinction between public and private persons must be made in the ordinary libel, slander and defamation laws as well. The possibility of abuse of such laws by public officials to silence critical opinions is as great with this type of law as with desacato laws. The Commission has stated:
[P]articularly in the political arena, the threshold of State intervention with respect to freedom of information is necessarily higher because of the critical role political dialogue plays in a democratic society. The Convention requires that this threshold be raised even higher when the State brings to bear the coercive power of its criminal justice system to curtail expression. Considering the consequences of criminal sanctions and the inevitable chilling effect they have on freedom of expression, criminalization of speech can only apply in those exceptional circumstances when there is an obvious and direct threat of lawless violence . . .
The Commission considers that the State’s obligation to protect the rights of others is served by providing statutory protection against intentional infringement on honor and reputation through civil actions and by implementing laws that guarantee the right of reply. In this sense, the State guarantees protection of all individual’s [sic] privacy without abusing its coercive powers to repress individual freedom to form opinions and express them.[7]
The Commission considered the issue of subsequent liability in a contentious case in a 1999 case against Peru.[8] General Robles suffered numerous repercussions against himself and his family because he denounced abuses committed by the Peruvian army and intelligence services in the context of fighting terrorism. In particular, Court Martial proceedings were initiated against him for various crimes, including insubordination, insulting a superior, undermining the Nation and the Armed Forces, abusing his authority, making false statements, and dereliction of duty. The Inter-American Commission found that these legal actions constituted a violation of General Robles' right to freedom of expression. The Commission noted that "undermining the Armed Forces or insulting a superior are appropriate terms when applied to the crimes for which they were created, in order to maintain a level of discipline suitable to the vertical command structure needed in a military environment, but that they are totally inappropriate when used to cover up allegations of crimes within the Armed Forces."[9] The Commission further noted that the right to freedom of expression, although it may be subject to reasonable subsequent penalties in accordance with the terms of the Convention, is broader when the "statements made by a person deal with alleged violations of human rights."[10] Thus, the requirement of proportionality of the penalty was not met.
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[1] Case 11.012, Report Nº 22/94, Argentina, Horacio Verbitsky, September 20, 1994 (Friendly Settlement).
[2] See, IACHR, Report on the Compatibility of Desacato Laws with the American Convention on Human Rights, OAS/Ser. L/V/II.88, Doc. 9 rev., February 17, 1995, 197-212.
[3] Id. at 212.
[4] Id. at 207.
[5] Id.
[6] Id. at 209.
[7] Id. at 211.
[8] Case 11.317, Report Nº 20/99, Peru, Rodolfo Robles Espinoza and sons, February 23, 1999.
[9] Id. para. 151.
[10] Id. para. 148.