Freedom of Expression

1 - Introduction

1.                  The Office of the Special Rapporteur for Freedom of Expression was created by the Inter-American Commission on Human Rights during its 97th regular session in October 1997.  But the Office began its day-to-day operations one year later, when the IACHR determined what the general characteristics and functions of the Office would be and decided to appoint the first Special Rapporteur.

2.                  At the beginning of 2003, the Office published its fifth annual report, and in October of 2003 the Office of the Special Rapporteur for Freedom of Expression completed its fifth year of work for the protection and promotion of freedom of expression in the Americas.  The Office's fifth year was a productive one.  In 2003, the Office made 3 official visits, participated in more than 10 seminars on freedom of expression, and assisted the Commission in more than 10 individual cases.  Additionally, the IACHR published special reports, drafted by the Office of the Special Rapporteur, on freedom of expression in Haiti and Panama.  The Office also contributed the chapters on freedom of expression to the IACHR's reports on the human rights situation in Guatemala and Venezuela.  These achievements were made possible through the dedication of the Office's staff, as well as the support of a talented group of interns.[i] 

3.                  On this fifth anniversary of the Office's operation, it is appropriate to say some words about the view of the Office of the Special Rapporteur of the situation of freedom of expression in the hemisphere.  The Inter-American Court of Human Rights and the Inter-American Commission on Human Rights have long argued that freedom of expression is an indispensable requirement for the very existence of a democratic society.  Historically, freedom of expression has been seen as a necessary tool to protect political freedom but the Office considers that we are at the beginning of a more complex understanding about the importance of freedom of expression: this fundamental right could also be seen as an indispensable tool to favor economic development.  And economic development is an important means to strengthen democracy.

 4.                  Given the deepening understanding of the fundamental importance of freedom of expression for political, social and economic development, it becomes all the more urgent to address the many challenges facing freedom of expression in our hemisphere.  The Office has highlighted some of these challenges repeatedly in the past five years: aggression against, and murder of, journalists; the lack of laws guaranteeing access to information; and the continued existence of desacato, or insult, laws in many of the States in the region. 

5.                  After five years of intense work, the Office believes that it is important today not only to highlight those problems, but also to call attention to some other threats to freedom of expression in the Americas.  These are problems such as lack of diversity of the media in some parts of the hemisphere and the financial pressure on the media.  Sometimes, lack of professionalism or ethical conduct in the media is mentioned as a threat to freedom of expression as well, because this leads to a risk that States will try to control media behavior through legal means. 

6.                  The Declaration of Principles on Freedom of Expression, developed by the Office and approved by the IACHR in 2000, was established as an authoritative interpretation of Article 13 and an important document to help States address these problems and to defend the right to freedom of expression.

7.                  For example, the Office of the Special Rapporteur recalls that Principle 12 of the Declaration of Principles on Freedom of Expression states that monopolies or oligopolies in the ownership and control of the communications media affect freedom of expression.

8.                  Based on the language of Article 13.3, Principle 13 states that financial and other types of pressure placed on media by governments violate the right to freedom of expression.  The financial pressure placed on the media has different faces: sometimes governments impose specific taxes on the media; sometimes the threat is a consequence of governmental control of the importation of ink or newsprint and sometimes the threat arises when the main source of financing of a media company is the government itself, by paying for public advertising.

9.                  Finally, in relation to the concern related to the lack of professionalism, the Office would like to draw attention to Principle 6, which states that "[j]ournalistic activities must be guided by ethical conduct, which should in no case be imposed by the State."  The Office notes that media are primarily responsible to the public, and not to the government.  The principal function of the media is to inform the public about, among other things, measures taken by the government. Having said that, the Office underscores that both journalists and media owners should be mindful of the need to maintain their credibility with the public, a key to their survival over time, and of the important role of the press in a democratic society.  So, the media should take up the challenge of self-regulation, which will impede any threat of imposing legal sanctions for journalistic decisions that are based essentially on subjective insights or professional judgment.  Such sanctions are invalid because they have the effect of inhibiting the media and preventing the dissemination of information of legitimate interest to the public.

10.              Taking into account some of those threats, this Annual Report includes chapters related to access to information laws and indirect means to limit freedom of expression.

11.              The General Assembly of the OAS resolved, in Paragraph 6 of Resolution 1932 (XXXIII-0/03), to "instruct the Inter-American Commission on Human Rights, through the Special Rapporteur for Freedom of Expression, to continue including in its annual report a report on access to public information in the region."  Pursuant to this mandate, Chapter IV of this report will summarize the current situation of the OAS member States in relation to the right to freedom of information, in an effort to record the recent developments with respect to this issue in the region.  To this end, in July 2003, an official questionnaire was issued to the permanent missions of the member States, requesting them to provide information on constitutional and legal provisions as well as facts about jurisprudence and implementation procedures regarding access to information.  The information received from the States has been integrated with research done by public media sources and non-governmental organizations in order to provide an overview of the situation in each memberState.  In this chapter, the Special Rapporteur reports on his findings with respect to the right of access to information in the region.   As is explained in the Chapter, some States have passed laws guaranteeing this right or are currently considering similar legislation, and civil society has been vigilant in observing the States' progress.

12.              This Report also explores the topic of Discriminatory Allocation of Official Publicity. Chapter V is an initial attempt to analyze the impact of government decisions about whether or not to distribute advertisements to various communications media.  It is also an appeal to find ways to strengthen and provide for established guidelines and transparency in official decision-making.  This Report examines the existing laws and policies throughout the Americas pertaining to distribution of government publicity, and documents allegations of discrimination in the actual allocation of advertising revenue.  The multitude of alleged cases is evidence of the widespread nature of indirect violations of freedom of expression, and of the need for a region-wide approach to a solution.

13.              The first part of Chapter III of this Annual Report summarizes the jurisprudence on freedom of expression of the European Court of Human Rights.  The inclusion of this section responds to an attempt by the Special Rapporteur for Freedom of Expression to comply with the mandate conferred upon him by the Heads of State and Government during the Third Summit of the Americas held in Quebec, Canada, in April 2001.  During the Summit, the Heads of State and Government ratified the mandate of the Special Rapporteur for Freedom of Expression, and further held that the States “will support the work of the Inter-American System of Human Rights in the area of freedom of expression, through the Special Rapporteur for Freedom of Expression of the IACHR, will proceed to disseminate comparative case law studies, and will further endeavor to ensure that national laws on freedom of expression are consistent with international legal obligations.”  The Special Rapporteur for Freedom of Expression regards the European Court's extensive jurisprudence on the right to freedom of expression as a valuable source that can shed light on the interpretation of this right in the Inter-American system, and serve as a useful tool for legal practitioners and interested people.

14.              The second section of Chapter III refers to States' domestic jurisprudence.  In this section, the report includes certain decisions by local tribunals that were handed down during 2003 and that reflect the importance of respecting freedom of expression as protected in the American Convention.  This section highlights some court decisions that have expressly or implicitly taken account of international standards protecting freedom of expression.   As the Office stated last year, when it initiated the practice of disseminating domestic jurisprudence, this can be a useful tool for other judges in issuing similar decisions and supporting them using comparative case law from Latin America, which is not always easily available.

15.              The rest of the chapters in this report follow the structure of previous annual reports.  It should be noted that Chapter II, “Evaluation of the Status of Freedom of Expression in the Hemisphere,” expresses the opinion of the Rapporteur, based on information received from various sources throughout the entire year.

16.              The five years of intense work of the Office of the Special Rapporteur since the first Special Rapporteur began his activities have established the Office throughout the hemisphere as the entity in the Organization of American States in charge of promoting and monitoring the observance of the right to freedom of expression.  The expectations regarding the Office of the Special Rapporteur have grown significantly.  To meet a large part of them, it is important to reinforce the Office.  The Special Rapporteur has spoken with various governments to emphasize the fact that along with the institutional and political support given to the Office since its inception, financial support needs to be a priority, because it is essential to operate and carry out the activities required under its mandate.  A few States are giving voluntary contributions.  So, it is important to urge, one more time, the States in the region to follow the lead taken by some States, in compliance with the commitments made at hemispheric summits.  It is important to emphasize that the Plan of Action approved by Heads of State and Government at the Third Summit held in Quebec in April 2001, states that in order to strengthen democracy, create prosperity, and develop human potential, the States “will support the work of the Inter-American Human Rights System in the area of freedom of expression, through the IACHR’s Special Rapporteur for Freedom of Expression.”

17.              The challenge for the Office in the coming years is to continue to build upon the hard work and successes of the past five years.  The Office's dedicated staff and interns are the key actors in addressing this challenge, but they are by no means the only ones.  As previously stated, it will require the political, institutional and financial support of the States of the region.  It will also require the participation of journalists and civil society members, who are essential for providing information about violations of the right to freedom of expression.  Through a concerted effort of all of these groups, the Americas can advance towards the consolidation of wide-ranging freedom of expression and access to information throughout the region.


[i] The Office would like to thank all of the 2003 interns for their hard work and their important contributions to the promotion and protection of the right to freedom of expression: Megan Hagler, Maria Clara Valencia, Kathleen Daffan, Rachel Jensen, Andrea de la Fuente, and María Rosario Soraide Durán.