Freedom of Expression
B. Evaluation
5. Freedom of expression and access to information are key ingredients in consolidating democracy in the Hemisphere. Through freedom of expression and access to information members of society are able to monitor the behavior of the representatives they elect. This watchdog function plays a crucial part in preventing impunity for human rights violations.
6. Freedom of expression and access to information also play a decisive part in a country’s economic development. Government corruption is the biggest single obstacle to equitable economic development, and the best way to fight it is to expose corrupt practices for public scrutiny and to guarantee the participation of all segments of society in public policy decisions that affect their daily lives.
7. It is precisely because they are the public’s watchdogs that members of the press are frequently targeted for acts of violence and intimidation aimed at silencing them. Murders, attacks, threats, and intimidation not only silence individual journalists; they also have a profound impact on their colleagues, by creating an atmosphere of fear and self-censorship. The assassination of media personnel is still a serious problem in this respect: ten were murdered in 2002 for exercising their profession. This is an unfortunately larger number than that published by the Rapporteur in the previous annual report.[2] This means we should insist on the fact that the assassination of media personnel in the course of their profession not only constitutes a violation of the fundamental right to life but also exposes other social communicators to a situation of fear that could induce them to censor themselves.[3]
8. At the same time, as Principle No. 9 of the Declaration of Principles on Freedom of Expression indicates,[4] acts of aggression, and not just murder, strongly restrict freedom of expression. In many countries in the Hemisphere, as the report shows, such acts continue, and in some of them have even increased alarmingly.
9. As troubling as these acts against the physical integrity of persons are, equally troubling is the impunity that many such crimes enjoy, whether they are perpetrated by State agents or by private individuals. The IACHR has established that the lack of serious, impartial, and effective investigation and punishment of the material and intellectual perpetrators of these crimes constitutes not only a violation of guarantees of due process of the law but also a violation of the right to inform and express one’s views publicly and freely, thereby generating the international responsibility of the State.[5]
10. Apart from these acts of physical violence, rules and regulations in most countries of the Hemisphere allow other methods designed to silence journalists, the media, and people in general. The Rapporteur expresses his grave concern at the use of lawsuits by the authorities or public figures to silence critics.
11. Taking into consideration what has been said above, the Office of the Special Rapporteur observes that little progress was made in consolidating freedom of expression in the Americas in 2002. There are still legal obstacles to the full exercise of freedom of expression by social communicators, journalists and media in general, as well by human rights defenders and others whose freedom of expression is curtailed, either directly or indirectly.
12. As shown in Chapter V of this Annual Report and as is clear from the information received by the Office of the Special Rapporteur, the arbitrary use of slander and libel laws to silence criticism of government officials or public figures was still a tactic employed against investigative journalists in several countries in 2002. In addition, in many other countries, with some exceptions that are pointed out below, "desacato" (or “insult”) laws are still in force and are wrongfully used to silence the press.
13. As regards access to public information, discussion continued in numerous countries on the need for and importance of specific laws on the subject.
14. The right to access to information is not just a theoretical priority; it is also a priority for eminently practical reasons. Effective exercise of this right serves to combat corruption, which is one of the factors capable of seriously undermining the stability of the democracies in the Americas. The lack of transparency in the conduct of public affairs has distorted economic systems and contributed to social disintegration. The Organization of American States has identified corruption as a problem requiring special attention in the Hemisphere. At the Third Summit of the Americas, the Heads of State and Government recognized the need to increase efforts to combat corruption since it “undermines core democratic values, challenges political stability and economic growth.” The Plan of Action of the Third Summit also stresses the need to support initiatives geared to achieving greater transparency in order to safeguard the public interest and to encourage governments to use their resources effectively for the common good.[6] Corruption can only be fought effectively through a combination of efforts to raise the level of transparency in government acts.[7] Transparency in the conduct of government affairs can be enhanced by establishing a legal regime allowing society access to information.
15. Although it is promising that discussion of this topic has entered the priority agendas of some states, not much progress has been made with respect to the promulgation of laws supporting this right, which is crucial for ensuring transparency in government and the protection of the right of societies to have access to information. Only a few countries adopted legislation of this kind in the course of the year under review. The Office of the Special Rapporteur will continue to monitor these processes, as well as the implementation and enforcement of laws regulating access to information.
16. The Rapporteur has heard some States and members of society express concern at the possibility that the media do not always act either responsibly or ethically. First, the Rapporteur would like to draw attention once again to the fact that the 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. This is a basic function in a democracy, so that any threat of imposing legal sanctions for journalistic decisions that are based essentially on subjective insights or professional judgment would also have the effect of inhibiting the media and preventing the dissemination of information of legitimate interest to the public.
17. The fact that governments should not regulate responsibility on the part of the media or their ethics does not imply that there are no ways of improving media practices. Nevertheless, it should be pointed out that the media will take a more responsible approach if they are free to elect how they inform and what they report and they receive the education needed to make ethical decisions.
18. 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. In the Plan of Action of the Third Summit of the Americas held in April 2001, in Quebec City, Canada, the Heads of State and Government stated that would encourage the media to practice self-regulation.
19. “The notion of self-regulation of the media refers to a set of mechanisms and instruments based on a shared objective of guaranteeing that the media act in accordance with their own professional values and standards. The distinctive mark of self-regulation is that for it to come about and work effectively there has to be free initiative and a voluntary commitment on the part of the three subjects of communication: the owners and producers of media enterprises; the professionals who work for them; and the public which receives or figures in the communications.” The mechanisms and instruments employed in self-regulation include: codes of ethics, style books, drafting by-laws, ombudsmen, information councils, etc.[8] In the Special Rapporteur’s view, the media should take up this challenge of self-regulation, encouraging ethical and responsible behavior.
20. On the other hand, the Office of the Special Rapporteur has received expressions of concern on the part of members of civil society and the media about the possible consolidation of practices that impede the existence of diversity and pluralistic expression of opinions, given the concentration of ownership of communications media, including print media as well as radio and television. In this sense, the Rapporteurship recalls that the Declaration of Principles on Freedom of Expression, elaborated by the Office of the Special Rapporteur for Freedom of Expression and adopted by the Inter-American Commission on Human Rights[9] is clear in that sense: monopolies or oligopolies in the ownership and control of the communications media affect freedom of expression. The Principle 12, explicitly indicates that “Monopolies or oligopolies in the ownership and control of the communication media must 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." Nevertheless, this principle also clarifies that in no case should these laws be exclusively for communications media. The Rapporteurship will continue observing this problem with attention in order to develop recommendations that correspond to the particular situations in each of the different member States.
21. Finally, as mentioned in previous reports, the Rapporteur continues to feel that there has to be more political will on the part of the member States to pass legislative reforms guaranteeing society ample exercise of the right to freedom of expression and information. Democracy requires extensive freedom of expression and therefore cannot thrive if states continue to allow mechanisms that thwart the exercise of that freedom. The Office of the Rapporteur reaffirms the need for States to make a more robust commitment to guarantee this right and thereby consolidate democracy in the Americas.
[2] The 2001 Report mentioned the murder of nine journalists. This year’s report mentions 10 media personnel who were murdered, including one photograph, one cameraman, one newspaper distributor, the driver of a mobile television van, and six journalists.
[3] Here the Rapporteur recalls Principle 9 of the Declaration of Principles on Freedom of Expression which stated: murder, kidnapping, intimidation of and/or treats to social communicators, as well as the material destruction of communications media violate the fundamental rights of individuals and strongly restrict freedom of expression.
[4] Id., Principle 9.
[5] IACHR, Report Nº 50/99, Case 11.739 (Mexico), April 13, 1999. Likewise, the Inter-American Court of Human Rights stated: “The State is, at the same time, obliged to investigate any circumstances in which human rights protected under the Convention are violated. If the authorities act in such a way that the violation goes unpunished and the victim’s full rights are not restored at the earliest possible opportunity, the State may be said to have failed to comply with its duty to guarantee for persons under its jurisdiction the free and full exercise of those rights. The same applies when private individuals or groups of them are allowed to act freely and with impunity in ways detrimental to the human rights recognized in the Convention.”
[6] See the Declaration and the Plan of Action of the Third Summit of the Americas. Quebec City, Canada, April 20-22, 2001.
[7] See the Inter-American Convention against Corruption, Inter-American System of Legal Information, OAS.
[8] See, Hugo Aznar, “Etica y Periodismo” [Ethics and Journalism], Ed. Paidos, Papeles de Comunicación 23, Barcelona, 1999, p. 42.
[9] The idea of drafting a Declaration on Freedom of Expression arose out of recognition of the need for a legal framework to regulate the effective protection of freedom of expression in the hemisphere that would incorporate the principal doctrines set forth in different international instruments. The Inter-American Commission on Human Rights approved the Declaration of Principles on Freedom of Expression at its 108th regular sessions in October 2000. This declaration constitutes a basic document for interpreting Article 13 of the American Convention on Human Rights. Its adoption not only serves as an acknowledgment of the importance of safeguarding freedom of expression in the Americas, but also incorporates international standards into the inter-American system to strengthen protection of this right. See, IACHR, Annual Report, 2000, Volum III.