Freedom of Expression

4 - Chapter III - Jurisprudence


A.         Summary of the jurisprudence of the inter-American system on freedom of expression[i]


1.         Introduction


1.      The jurisprudence of the inter-American human rights system began to be developed in 1965, with the authorization for the Inter-American Commission on Human Rights to examine complaints or petitions regarding specific cases of human rights violations.  Complaints were decided based on the provisions of the American Declaration of the Rights and Duties of Man.  In 1969, the American Convention on Human Rights was adopted.[ii]  It entered into force in 1978, further defining the scope of the human rights protected by the regional system.  The Convention also creates the Inter-American Court of Human Rights and defines the functions and procedures of both the Commission and the Court.


2.      The following sections summarize the jurisprudence on freedom of expression of the IACHR and the Court.[iii]  This chapter has been included for several reasons.  First, it will be helpful to attorneys and others bringing petitions before the Commission and the Court to have all the jurisprudence on freedom of expression cited in a concise format.  Secondly, it serves to demonstrate the development that has occurred in the jurisprudence of the inter-American system since the beginning of the case system in terms of the level of legal analysis carried out in each case.  Earlier cases provide very little information about the reasons for a particular decision.  More recent cases are characterized by a high level of legal analysis that serves to assist not only in the particular case at hand, but also in future cases with similar facts.  Finally, this chapter shows the development of the importance the system has placed on freedom of expression.  The Court and the Commission have increasingly highlighted the importance of freedom of expression in a democratic society and the particular emphasis placed on this right in the inter-American system, in contrast with the European human rights system and the universal system.[iv]  This focus on freedom of expression led to the establishment by the Commission of the Office of the Special Rapporteur for Freedom of Expression in 1997.

2.         Cases under the American Declaration of the Rights and Duties of Man


3.      As previously noted, petitions received before the entry into force of the American Convention on Human Rights were evaluated according to the American Declaration of the Rights and Duties of Man.  To this day, petitions from member States that have not yet ratified the American Convention are decided under the terms of the Declaration.  With respect to freedom of expression the Declaration provides in Article IV:


Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever.


4.      The following cases were the earliest cases decided by the Commission with respect to freedom of expression.  As is characteristic of earlier cases, these opinions do not contain a great deal of explanation about the basis for the Commission's findings.


5.      The Commission first addressed an alleged violation of the right to freedom of expression in a group of cases from Guatemala.[v]  The petitioners alleged that the State was responsible for the disappearances, deaths, and arbitrary detentions of hundreds of individuals in the context of a "state of seige." ("estado de sitio").  They claimed that the State violated Article IV of the American Declaration, among other articles.  The Commission’s report does not detail the reasoning the petitioners provided.  The petitioners also alleged violations of Articles I (right to life, liberty, and personal security), II (right to equality before the law), III (right to religious freedom), XVIII (right to a fair trial), and XXV (right to protection from arbitrary arrest).  The Commission did not find a violation of Article IV, and did not provide its reasoning for this specific decision.  The Commission found that the State had violated Articles I, XVIII, and XXV, and XXVI (right to due process).


6.      The Commission again considered the application of Article IV of the Declaration in a 1987 case from Paraguay.[vi]  The petitioners in that case alleged that the radio station “Radio Ñandutí” suffered ongoing harassment over a period of several years.  The station was temporarily shut down on several occasions by governmental agencies, a program was terminated, and the director of the radio, Humberto Rubín, was detained and threatened with deportation if he would not change his editorial position.  Mr. Rubín, his family, and workers of the radio also received death threats, which the petitioners alleged were reported to the police with no response.  Additionally, businesses were pressured not to advertise on the station.  The Commission found a violation of Articles IV and XXIII of the Declaration.  In addressing the violation of Article IV, the Commission reasoned that it is not acceptable to restrict the right to expression through indirect methods, referring to the language of Article 13 of the American Convention.[vii]  The Commission also stated that freedom of expression is one of the most solid guarantees of modern democracy and development and that this freedom requires not only that individuals be free to transmit ideas and information, but also that all people can receive information without interference.  The Commission recommended that the government investigate and sanction those responsible, and indemnify the business and its employees for economic loss.


3.         Cases under the American Convention on Human Rights


7.      The following section summarizes cases decided by the Commission and the Court under the more detailed provisions of Article 13 of the American Convention.  Cases in this section are divided into the following categories: Violence Against or Murder of Journalists[viii]; Intimidation, Threats, and Harassment in Retaliation for Expressions; Prior Censorship; Subsequent Liability for Expressions; Mandatory Membership in a Professional Association for the Practice of Journalism; Indirect Restrictions on Freedom of Expression; the Right to the Truth; and the Right to Reply.


a.         Violence against or murder of journalists


8.      The Commission has repeatedly emphasized that violence against or murder of journalists or others in retaliation for their exercise of the right to freedom of expression violates not only the right to life and physical integrity, but also the right to freedom of expression.


9.      This issue was first addressed in a 1996 case from El Salvador.[ix]  In that case, agents of the Government of El Salvador were alleged to have committed violent attacks, torture, and persecution against the Comadres Committee, a support group for families of disappeared persons.  The Commission found a violation of Articles 5, 7, 11, 16, and 25. The Commission did not find a violation of Article 13, which was alleged by the petitioners.  The Commission provided no specific reasoning as to why it did not find a violation of Article 13.[x]


10.  In another 1996 case,[xi] Petitioner Carlos Gómez, an active member of labor organizations, alleged that he was the victim of an attempt on his life by members of the Guatemalan military and that he had been denied legal protection by the State.  Mr. Gómez was shot, left for dead, and robbed of photos and the camera and equipment with which he had documented the situations of persons displaced by the armed conflict and their mistreatment by the Guatemalan army.  The Commission concluded that because the attackers took Mr. Gómez's photos and equipment and because they attempted to kill him to prevent the distribution of the photos, they interfered with Mr. Gómez’s right to freedom of expression, among other rights.


11.  In 1997, the Commission considered the issue of the murder of the journalist Hugo Bustíos Saavedra.[xii]  Mr. Saavedra was murdered in 1988, allegedly by members of the Peruvian military patrol while he and another journalist were investigating two murders.  Eduardo Rojas Arce, Mr. Saavedra’s colleague, received gunshot wounds from the incident.  The two journalists had been investigating murders in the context of the state of internal armed conflict in Peru at the time.  The Commission found that the State was responsible for violating Article 13 of the Convention, as well as Articles 4, 5, and 25 of the Convention and common Article 3 of the Geneva Conventions.  The Commission held that the State was responsible for violating the individuals’ right to freedom of expression, as the government knew that journalists were in an area of armed conflict and did not provide protection for them.  Further, the Commission found that claims that the Shining Path had carried out the attacks were not viable.  The Commission maintained that the murder of Mr. Bustíos and the injury to Mr. Rojas interfered with their right to conduct their journalistic activities and intimidated other journalists from reporting on issues related to the armed conflict.  The Commission further concluded that the State violated society’s right to information by perpetrating violence against the two journalists.  The Commission asserted that journalists play an important role in reporting on armed conflicts by providing an independent source of information to the public, and that journalists working in these situations should be accorded the highest level of protection available.


12.  The Commission again addressed the issue of violence carried out by state agents in retaliation for the exercise of freedom of expression in the case of Tarcisio Medina Charry of Colombia.[xiii]  Mr. Medina, a university student, was abducted in 1988 by agents of the National Police.  According to a witness, on the night Mr. Medina was taken, an official said he was going to take Mr. Medina after seeing copies of the Communist Party newspaper in Mr. Medina’s backpack, suggesting that Mr. Medina was a “subversive.”  Another witness observed the officials chastise Mr. Medina for selling the newspapers.  Mr. Medina was disappeared.  The Commission held that the State violated Article 13 because the State agents disappeared Mr. Medina in part as a consequence of his decision to exercise his right to freedom of thought and expression.


13.  In 1999, the Commission took the analysis of this type of case a step further in the case of Héctor Félix Miranda.[xiv]  Mr. Miranda, a journalist, frequently included gossip and sarcastic remarks about government officials in a column he wrote.  He was assassinated in 1988 in apparent retaliation for his writings.  The main perpetrators of the crime were arrested and sentenced, but the intellectual author of the crime was never apprehended.  Although the petitioners did not allege a violation of Article 13, the Commission found that the State had violated Article 13, among others, of the Convention.  The Commission considered that aggression against journalists and the State’s failure to conduct a full investigation of such aggression creates an incentive for violators of human rights and causes a chilling effect among journalists and others who fear denouncing abuses or other illegal acts.  The Commission followed that these effects can be avoided only by “swift action” on the part of the State to prosecute and punish perpetrators.  In supporting its reasoning, the Commission cited its “General Report on the Situation of Human Rights in Mexico,” in which the Commission stated, “Attacks on journalists are specifically intended to silence them, and so they also constitute violations of the right of society to have free access to information.”[xv] The Commission concluded that it is the obligation of the State to prevent, investigate, and punish the perpetrators of assassinations and other acts of violence perpetrated with the objective of silencing the exercise of freedom of expression and that the State of Mexico did not meet its obligation in the case of the assassination of Mr. Miranda.


14.  The same year, the Commission decided the case of Victor Manuel Oropeza.[xvi]  Victor Manuel Oropeza, a journalist, was assassinated in 1991, apparently in retribution for articles he had published that criticized Mexican authorities.  The petitioners alleged that the State did not carry out a good faith investigation of the murder.  As in the Miranda case, the Commission did not conclude that the State was responsible for the killing of Mr. Oropeza, but it did confirm that Mr. Oropeza was the target of threats because of his journalistic activity.  Therefore, the Commission concluded that the State’s failure to investigate violated Mr. Oropeza’s right to freedom of expression.  The Commission also concluded that because attacks on journalists constitute “aggression against all citizens inclined to denounce arbitrary acts and abuses to society,” the State’s failure to investigate the assassination violated society’s right to freedom of expression, right to receive information, and right to learn the truth about what occurred.[xvii]


b.         Intimidation, threats, and harassment in retaliation for expressions


15.  This section refers to cases addressing arbitrary or unlawful acts, other than violence or murder, undertaken by state agents in order to stifle freedom of expression. 


16.  In a 1990 case against Mexico,[xviii] the petitioners, members of the National Action Party (PAN) who were running for office in Chihuahua, alleged that members of the Institutional Revolutionary Party (PRI), the party in power in Mexico at the time, were responsible for manipulating various elements of the election in question, causing electoral fraud.  Specifically, the petitioners alleged that the PRI implemented legal procedures aimed at amending electoral legislation to give greater control to the government party, used funds and other public resources for their benefit, exerted “pressures to undermine freedom of expression,” eliminated people from the list of voters, registered non-existent persons, created and cancelled polling places arbitrarily, stuffed ballot boxes, refused to recognize representatives of opposition political parties, benefited from the heavy presence of police and the military during election day.  The petitioners alleged violations of Article 13 as well as Articles 5, (right to humane treatment), 8 (right to a fair trial), 11 (right to privacy), 15 (right of assembly), 16 (freedom of association), 23 (right to political participation), 24 (right to equal protection), and 25 (right to judicial protection) as a result of the de facto irregularities that allegedly occurred during the election.  The Commission held that it could not confirm nor deny the veracity of the petitioner’s evidence of the irregularities that occurred and therefore did not rule on these issues.


17.  In the case of Brigadier General José Francisco Gallardo Rodríguez,[xix] also in Mexico, the petitioner alleged that he had been threatened, harassed, and intimidated by State agents in retaliation for criticizing the human rights record of the military.  The victim was also subject to arbitrary detention and imprisonment based on false accusations, and had been the victim of a defamation campaign.  He was the subject of criminal proceedings, and was later released.  The Commission did not find a violation of Article 13.  The Commission considered that the primary objective for the State’s campaign against General Gallardo was not to prevent from expressing his opinions about the military’s human rights record, based on the timing of the incidents.  Additionally, the Commission found that because the State dropped charges against General Gallardo, the issue had been resolved within the domestic jurisdiction.


18.  In 1999, in another case against Mexico, the petitioners alleged that three priests were abducted and taken at gun point to a destination identified in two cases as the Chiapas State Judicial Police Station, were stripped, and were forced to undergo medical examinations.[xx]  They were flown, in a government plane, to Mexico City, where they were interrogated by immigration officers.  They were then flown to Miami.  Petitioners allege the priests were deported for their human rights activism in Chiapas.  The State contended that the three priests were deported because they were encouraging the people to act against the authorities.  The petitioners alleged that the State was in violation of several provisions of the Convention, including Article 13.  The Commission held that the State was in violation of Articles 5, 8, 11, 12, 16, 22, and 25 of the Convention.  The Commission did not find that the State was in violation of Article 13, and did not provide its reasoning with regard to the petitioners’ allegation of the State’s violation of the priests’ freedom of expression.


c.         Prior censorship


19.  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."[xxi]  The Commission and the Court have strictly interpreted this provision in contentious cases.[xxii]


20.  The Commission first addressed the issue of prior censorship in a 1996 case from Grenada.[xxiii]  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.


21.  The Commission further developed its jurisprudence on prior censorship in the 1996 case of Francisco Martorell.[xxiv]  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.[xxv]


22.  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.”[xxvi]  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[.]”[xxvii]


23.  In the “Last Temptation of Christ” Case,[xxviii] 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.”[xxix]  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.


d.         Subsequent liability for expressions


24.  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."


25.  The appropriate application of the subsequent liability principle was the issue in the 1994 case of Horacio Verbitsky from Argentina.[xxx]  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.


26.  The resulting report provides important guidelines for the application of subsequent liability for expressions in the inter-American system.[xxxi]  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.”[xxxii]  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.”[xxxiii]  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.”[xxxiv]  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.”[xxxv]  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.


27.  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.[xxxvi]


28.  The Commission considered the issue of subsequent liability in a contentious case in a 1999 case against Peru.[xxxvii]  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."[xxxviii]  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."[xxxix]  Thus, the requirement of proportionality of the penalty was not met.


e.         Mandatory membership in a professional association for the practice of journalism


29.  Many states in the Americas have historically had a national journalists' association, of which one must be a member in order to practice journalism professionally.  Many argue that such associations are important because they allow the practice of journalism to be regulated, promoting professionalism and higher-quality journalism.  At the same time, the practice of allowing states to control who practices journalism may be subject to abuse and may lead to the curtailment of freedom of expression.


30.  In a 1984 case against Costa Rica, the Commission considered the issue of whether a requirement of membership in a professional association for the practice of journalism violated the right to freedom of expression.[xl]  Petitioner Stephen Schmidt worked as a technical adviser, translator, editor, and writer for The Tico Times, an English-language weekly in Costa Rica.  At the time, Cost Rica had a law requiring that the practice of journalism was limited to those licensed by the Colegio de Periodistas, the national journalists' association, with criminal penalties for those practicing without a license.  Mr. Schmidt was convicted of illegally practicing the profession of journalism due to the fact that he was not licensed by the Colgeio and was sentenced to three months of prison.  The Commission determined that the State did not violate Article 13 of the American Convention.  The Commission reasoned that journalists' associations like the Colegio protect the right to seek and impart information without controlling the dissemination of information and that they serve to regulate journalists’ activities, rather than restrict them.  Further, the Commission considered that journalists' associations protect freedom of expression by providing services to members of the profession, such as regulation of journalistic ethics and discipline and encouragement of the professional and social development of its members.  The Commission pointed out that just as the State enforces the regulations of other professional organizations, the State should be free to enforce the regulations of the journalists' association in ensuring that the profession is practiced responsibly and ethically.[xli]


31.  As a result of this opinion, the State of Costa Rica requested an advisory opinion from the Inter-American Court of Human Rights on the issue of mandatory membership in a professional organization for the practice of journalism.[xlii]  The Court concluded the opposite of what the Commission had held, namely that laws mandating membership in a professional association for the practice of journalism do violate Article 13.  The Court reasoned that "journalism cannot be equated to a profession that is merely granting a service to the public through the application of some knowledge or training acquired in a university or through those who are enrolled in a certain professional 'colegio.'”[xliii]  It considered, rather, that "the professional journalist is not, nor can he be, anything but someone who has decided to exercise freedom of expression in a continuous, regular and paid manner."[xliv]


32.  The Court rejected arguments that the compulsory licensing of journalists can be justified as a legitimate restriction on freedom of expression because it is essential to guarantee public order[xlv] or as a just demand of the general welfare in a democratic society.[xlvi]  With respect to the issue of public order, the Court noted:


If the notion of public order . . . is thought of  . . . as the conditions that assure the normal and harmonious functioning of the institutions on the basis of a coherent system of values and principles, it is possible to conclude that the organization of the practice of professions is included in that order. 


The Court also believes, however, that the same concept of public order in a democratic society requires the guarantee of the widest possible circulation of news, ideas and opinions as well as the widest access to information by society as a whole.[xlvii]


33.  Therefore, the Court concluded:


[T]hat reasons of public order that may be valid to justify compulsory licensing of other professions cannot be invoked in the case of journalism because they would have the effect of permanently depriving those who are not members of the rights that Article 13 of the Convention grants to each individual.  Hence it would violate the basic principles of a democratic public order on which the Convention itself is based.[xlviii]


34.  The Court also considered arguments that mandatory licensing of journalists is justified based on considerations of general welfare because it is a means of guaranteeing society objective and truthful information through codes of professional responsibility and ethics and because it is a means of guaranteeing the freedom and independence of journalists by strengthening the guild of professional journalists.  With respect the first rationale, the Court noted that:


[I]n truth, as has been shown, general welfare requires the greatest possible amount of information, and it is the full exercise of the right of expression that benefits this general welfare. In principle, it would be a contradiction to invoke a restriction to freedom of expression as a means of guaranteeing it. Such an approach would ignore the primary and fundamental character of that right, which belongs to each and every individual as well as the public at large. A system that controls the right of expression in the name of a supposed guarantee of the correctness and truthfulness of the information that society receives can be the source of great abuse and, ultimately, violates the right to information that this same society has.[xlix]


35.  With respect to the rationale that mandatory licensing is a means to guarantee the freedom and independence of journalists, the Court recognized that this needed to be guaranteed.  However, it recalled that even legitimately-aimed restrictions on freedom of expression must also be “necessary to ensure”[l] that legitimate aim.  This entails that there is no means to achieve that aim that would be less restrictive of freedom of expression.  The Court found that the mandatory licensing requirement did not satisfy this requisite “because the establishment of a law that protects the freedom and independence of anyone who practices journalism is perfectly conceivable without the necessity of restricting that practice only to a limited group of the community.”[li]


36.  This advisory opinion has become the prevailing standard on this issue in the inter-American system and the opinion is also frequently cited for its thorough analysis of the nature and scope of the right to freedom of expression in general.


f.          Indirect restrictions


37.  Article 13 of the American Convention states that "freedom of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions."[lii]  Indirect methods of restriction frequently involve the use of legitimate regulatory and other mechanisms in a discriminatory or abusive manner to reward or punish journalists or others for what they express.


38.  The earliest case addressing this type of problem was the 1982 case of Bishop Juan Gerardi.[liii]  Bishop Gerardi, a Guatemalan citizen, was denied reentry into Guatemala after attending a function of the Catholic Church in Rome, where he presented a report about the situation of the Church in Guatemala.  The Commission found that the act of denying reentry to Bishop Gerardi constituted a violation of Article 13 of the American Convention, although it did not provide the specific legal reasoning for this decision.


39.  In a 1988 case, the Commission considered a similar situation.[liv]  The petitioner in the case was Nicolas Estiverne, a Haitian who became a naturalized U.S. citizen and then later returned to Haiti to live and regain his Haitian citizenship.  In 1986, the petitioner launched a campaign for the presidency of Haiti.  During his presidential campaign, the petitioner denounced on television and radio a general’s alleged plan to assume power.  The Haitian government ordered that the petitioner be expelled from the country because the petitioner’s acts had allegedly compromised the public order.  The Commission found that the order of expulsion against Mr. Estiverne was motivated by political considerations, in order to silence his criticisms of the general.  Therefore, the order of expulsion violated Article 13 of the American Convention.


40.  A more explicit condemnation of the use of indirect restrictions on freedom of expression can be found in the Ivcher Bronstein Case decided by the Inter-America Court in 2001.[lv]  The petitioner in this case, Baruch Ivcher Bronstein, was a naturalized citizen of Peru and was the majority shareholder in the company that operated the Peruvian television Channel 2.  As majority shareholder, Mr. Ivcher Bronstein exercised editorial control over the channel’s programs.  One of the channel’s programs, Contrapunto, reported various news stories about abuses, including torture and acts of corruption, committed by the Peruvian Intelligence Services.  As a result of these reports, Mr. Ivcher Bronstein was subject to a number of intimidating actions, culminating in a decree to revoke Mr. Ivcher Bronstein’s Peruvian citizenship.  The Court found that “the resolution that revoked the citizenship of Mr. Ivcher constituted an indirect means of restricting his freedom of expression, as well as that of the journalists who work and investigate for the program Contrapunto on Peruvian television Channel 2.”[lvi]  Additionally, the Court concluded that “by separating Mr. Ivcher from the control of Channel 2, and excluding the journalists from the program Contrapunto, the State not only restricted the right of these individuals to circulate news, ideas and opinions, but also affected the right of all Peruvians to receive information, limiting their right to exercise political opinions and develop themselves fully in a democratic society.”[lvii]


g.         Right to the truth


41.  The group of cases in the following section deal with the "right to truth," a concept that has been developing in the inter-American system in recent years.  The Commission first began to understand this right as the right of families to know the fate of their loved ones, a right that flows from the States' obligation under Article 25 to provide victims or their next-of-kin simple and prompt legal recourse for violations of fundamental rights.[lviii]  The understanding of this right has evolved, and it is now considered, at least by the Commission, that the right to the truth is a right that belongs both to victims and family members and to society as a whole.  Under this current understanding, the right to the truth is based not only in Article 25, but also in Articles 1(1), 8, and 13 of the Convention.[lix]


42.  The Commission's 1998 report in a group of cases from Chile marks the first time the Commission considered Article 13 in the context of the right to the truth, as well as the first time the Commission recognized that the right to truth belongs to members of society at large as well as to the families of victims of human rights violations.[lx]  In this group of cases, the petitioners asserted that the continued application of the amnesty law in Chile violated the rights of victims of the repression during the Pinochet regime.  According to the law, crimes committed between 1973 and 1978 were pardoned, hindering the investigation and punishment of crimes and allowing perpetrators to go unpunished.  Among other rights, the Commission found that the State had violated the right of the victims’ families and of society to know the truth about what occurred in Chile.  The Commission noted that this obligation stems from Articles 1(1), 8, 25, and 13 of the Convention.  Additionally, the Commission stated that when amnesties are enforced, States must adopt the measures necessary to establish the facts and identify those responsible.  The Commission also maintained that “[e]very society has the inalienable right to know the truth about past events, as well as the motives and circumstances in which aberrant crimes came to be committed, in order to prevent repetitions of such acts in the future.”[lxi]  Further, the Commission stated that “[t]he interpretation of the generic obligations established in Article 1.1 made by the Court in the Castillo Paéz Case … allows for the conclusion that the ‘right to truth’ is a basic and indispensable consequence for every State Party.”[lxii]


43.  The Commission again addressed in the context of amnesty laws in a 1999 case from El Salvador.[lxiii]  The petitioners alleged that several farmers were arrested and tortured by units of the Salvadoran Army in the context of a period of domestic armed conflict.  Two of the detainees allegedly died as a result of the torture.  After a peace agreement was signed in 1992, a Truth Commission was established to investigate serious acts of violence that occurred in the context of the armed conflict and to report these findings to the public.  In 1993, the State approved an amnesty law, which nullified the recommendations of the Truth Commission, and eliminated the possibility of investigations and legal sanctions against the perpetrators of unlawful violence.  The Commission found that the State had violated the petitioners' and the right of society at large to know the truth about the human rights violations that occurred in El Salvador and the identity of those who perpetrated them.  As in the previous case, the Commission stated that the right to know the truth arises out of Articles 1(1), 8, 25, and 13 of the Convention, although it did not expressly find a violation of Article 13.  Moreover, the Commission maintained that the right to truth is a “collective right which allows a society to gain access to information essential to the development of democratic systems, and also an individual right for the relatives of the victims, allowing for a form of reparation, especially in cases where the Amnesty Law is enforced.  The American Convention protects the right to gain access to and obtain information, especially in the cases of the disappeared, in regard to which the Court and the Commission have established that the State is obligated to determine the person’s whereabouts.”[lxiv]


44.  The Commission found a violation of Article 13 based on the right to the truth in another 1999 case from El Salvador.[lxv]  In that case, six Jesuit priests, their cook, and her daughter were extra-judicially executed by military personnel.  The murders were blamed on an armed dissident group, however, a report by the Truth Commission indicated that members of the armed forces were responsible for the killings.  The State convicted two members of the armed forces, but later released them after the passage of an amnesty law.  In finding a violation of the right to the truth, the Commission noted the State's duty to the victims' relatives and to society as a whole to provide information regarding the circumstances that gave rise to the serious human rights violations and the identities of the perpetrators and further stating that this right arises under Articles 1(1), 8(1), 25, and 13.  For the first time in this type of case, the Commission expressly stated that the State had violated Article 13, noting that "Article 13 protects the right of access to information.[lxvi]


45.  In the 2000 case of the extra-judicial execution of Monsignor Oscar Romero in El Salvador, the Commission reiterated its position that the right to the truth stems in part from Article 13.[lxvii]  Monsignor Oscar Romero was allegedly murdered by state agents operating as part of death squads.  The State subsequently failed to investigate the circumstances surrounding his death and bring the perpetrators to justice.  The Commission held that the State was responsible for violating its duty to provide society and the victim’s family with the truth about the scope of the violations as well as the identities of those who participated in them.  As in previous cases, the Commission recognized that the State’s obligations to the victims’ direct relatives and society at large stem from Articles 1(1), 8, 25, and 13 of the Convention.  Although the Commission did not directly find a violation of Article 13, it drew from Article 13 in its analysis of the State’s duty to reveal the truth.  The Commission asserted that Article 13 protects society’s right to seek and receive information.  The Commission further maintained that the right to the truth is part of the family’s right to reparation.


46.  The issue of the right to the truth has subsequently arisen in two cases considered by the Inter-American Court.[lxviii]  The Bámaca Velásquez Case dealt with the disappearance of Efraín Bámaca Velásquez, a leader of a guerrilla group in Guatemala at the hands of the Guatemalan Army.  The Barrios Altos Case involved a shooting ambush in a Lima, Peru apartment building that left 15 dead and four wounded.  The shootings were allegedly perpetrated by members of the "Colina Group," a "death squadron" of the Peruvian Army's intelligence services.  In both cases, the Court found that the right of the victims or their next-of-kin to know the truth about the alleged human rights violations had been violated, but that it was unnecessary to consider this as a separate issue since in both cases the issue was addressed as part of the violation of Articles 8 and 25.


h.         Right to reply


47.  Under Article 14 of the American Convention, any individual who is “injured by inaccurate or offensive statements or ideas disseminated to the public in general by a legally regulated medium of communication has the right to reply or to make a correction using the same communications outlet, under such conditions as the law may establish.”  This right is linked to the right of freedom of expression, providing a means to address injuries to persons causes by the exercise of freedom of expression that does not unduly interfere with the right to freedom of expression.    


48.  The government of Costa Rica requested an advisory opinion from the Inter-American Court with respect to the State’s obligation to enforce this right.[lxix]  The Court found that the right to reply is an internationally protected right and that the States Parties have an obligation “to respect and to ensure the free and full exercise thereof to all persons subject to their jurisdiction.”[lxx]  If this right is not enforceable under the domestic law of a State Party, the State “has the obligation, under Article 2 of the Convention, to adopt, in accordance with its constitutional processes and the provisions of the Convention, the legislative or other measures that may be necessary to give effect to this right.”[lxxi]


[i] This chapter was made possible through the assistance of Megan Hagler, a third-year law student at American University’s Washington College of Law, who provided the research and the preliminary drafting of this report.

[ii] The American Convention has been ratified by the following 25 countries: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, the Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Trinidad and Tobago, Uruguay, and Venezuela.

[iii] This section complements and updates a section of the Office of the Special Rapporteur's 1998 Annual Report,
p. 15.

[iv] See, e.g., Inter-American Court of Human Rights, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Articles 13 and 29 American Convention on Human Rights), Advisory Opinion OC 5/85 of November 13, 1985 (on the relative importance of freedom of expression).

[v] Case 1702, 1748, and 1755, Guatemala, 1975.

[vi] Case 9642, Report Nº 14/87, Paraguay, March 28, 1987.

[vii] The Convention had entered into force at that point.  Paraguay had signed, but not ratified the Convention.  Paraguay eventually ratified the Convention in 1989.

[viii] It should be noted that for purposes of simplification in this chapter the word "journalist" is often used when referring to any person exercising his or her right to freedom of expression.

[ix] Case 10.948, Report Nº 13/96, El Salvador, March 1, 1996.

[x] In many cases in which a violation of the right to freedom of association is found, it may simply seem redundant to find a violation of the right to freedom of expression as well.

[xi] Case 11.303, Report Nº 29/96, Guatemala, Carlos Ranferi Gomez Lopez, October 16, 1996.

[xii] Case 10.548, Report Nº 38/97, Peru, Hugo Bustios Saavedra, October 16, 1997.

[xiii] Case 11.221, Report Nº 3/98, Colombia, Tarcisio Medina Charry, April 7, 1998.

[xiv] Case 11.739, Report Nº 5/99, Mexico, Hector Felix Miranda, il 13, 1999.

[xv] Id. para. 41, citing Report on the Situation of Human Rights in Mexico, OEA/Ser. L/V/II.100, Doc. 7 rev. 1, September 24, 1998 at par. 649, p. 142.

[xvi] Case 11.740, Report Nº 130/99, Mexico, Victor Manuel Oropeza, November 19, 1999.

[xvii] Id. para. 61.

[xviii] Cases 9768, 9780 and 9828, Nº 01/90, Mexico, May 17, 1990.

[xix] Case 11.430, Report Nº 43/96, Mexico, Jose Francisco Gallardo Rodriguez, October 15, 1996.

[xx] Case 11.610, Report Nº49/99, Mexico, Loren Laroye Riebe Star, Jorge Alberto Barón Guttlein and Rodolfo Izal Elorz, April 13, 1999.

[xxi] American Convention on Human Rights, Article 13.4.

[xxii] 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."

[xxiii] Case 10.325, Report Nº 2/96, Grenada, Steve Clark et al., March 1, 1996

[xxiv] Case 11.230, Report Nº 11/96, Chile, Francisco Martorell, May 3, 1996

[xxv] Id. para.56.

[xxvi] Id. para. 72

[xxvii] 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.

[xxviii] Inter-American Court of Human Rights, Case of the Last Temptation of Christ (Olmedo Bustos et al. vs. Chile), Judgment of February 5, 2001.

[xxix] American Convention on Human Rights, Article 13.4.

[xxx] Case 11.012, Report Nº 22/94, Argentina, Horacio Verbitsky,  September 20, 1994 (Friendly Settlement).

[xxxi] 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.

[xxxii] Id. at 212.

[xxxiii] Id. at 207.

[xxxiv] Id.

[xxxv] Id. at 209.

[xxxvi] Id. at 211.

[xxxvii] Case 11.317, Report Nº 20/99, Peru, Rodolfo Robles Espinoza and sons, February 23, 1999.

[xxxviii] Id. para. 151.

[xxxix] Id. para. 148.

[xl] Case 9178, Report Nº 17/84, Costa Rica, Stephen Schmidt, October 3, 1984.

[xli] One member of the Commission dissented in the Schmidt case, arguing that regulation through the use of journalists' associations does improperly threaten journalists’ freedom of expression.  The dissent warned that the regulation in question is a subtle restriction on the right of freedom of expression that has the potential to weaken the scope of the right.  Additionally, the dissent argued that because the profession of journalism is so closely interrelated with the right to freedom of expression, regulation of the profession of journalism is fundamentally different from that of other professions, as any restriction on journalists’ ability to disseminate information may seriously limit the inalienable right to freedom of expression.  To the contrary, the dissent argued, the professional activities of lawyers, doctors, or engineers do not concern basic human rights such as freedom of expression and information.  Finally, the dissent added that the best manner in which to promote responsibility among journalists is to allow the free interchange of ideas without restriction.  Consequently, journalists should enjoy full protection of their international right to freedom of expression without being subject to any other hierarchical structure designed to regulate their dissemination of information.

[xlii] OC 5/85, supra.  It is interesting to note that the Schmidt case might have been submitted to the court as a contentious case, but the question was instead submitted as a request for an advisory opinion.  Under Article 61 of the American Convention, only the Commission or a State party has the right to bring a case to the Inter-American Court.  In this case there was no legal advantage to the State in submitting the case to the Commission, as the decision had been favorable to it.  However, recognizing the importance of the issue due to the high incidence of similar laws in other Latin American countries, Costa Rica decided that an advisory opinion on the issue would be useful.  Unlike a decision by the Court in a contentious case, advisory opinions are not binding, final, and enforceable.  See id. paras. 16-28.

[xliii] Id. para. 71.

[xliv] Id. para. 74.

[xlv] American Convention on Human Rights, Article 13.2.b.

[xlvi] American Convention on Human Rights, Article 32.2.

[xlvii] OC 5/85, supra, paras. 68-69.

[xlviii] Id. para. 76.

[xlix] Id. para. 77.

[l] See Id. para.79. See also American Convention on Human Rights, Article 13.2.

[li] Id. para. 79.

[lii] American Convention on Human Rights, Article 13.3

[liii] Case 7778, Resolution Nº 16/82, Guatemala, Obispo Juan Gerardi, March 9, 1982.

[liv] Case 9855, Resolution Nº 20/88, Haiti, Nicolas Estiverne, March 24, 1988.

[lv] Inter-American Court of Human Rights, Ivcher Bronstein Case, Series C, Nº 74, Judgment of February 6, 2001.

[lvi] Id. para. 162.

[lvii] Id. para. 163.

[lviii] See Case 10.580, Report Nº 10/95, Ecuador, Manuel Bolaños, September 12, 1995.  The first case in which the Commission addressed the right to truth was the 1995 case of the disappearance of Manuel Bolaños in Ecuador.  The Ecuadorian Marines allegedly took Manuel Bolaños into custody to review his identification documents.  Mr. Bolaños was never seen or heard from again.  After Mr. Bolaños’ disappearance, his family presented habeas corpus petitions before the appropriate courts.  The habeas corpus petitions were rejected.  Nearly two years after Mr. Bolaños disappeared, his family received news that he had died while in the custody of the Marines and that an investigation into his death was under way.  However, the government never established the responsibility of those who allegedly tortured and killed Mr. Bolaños.  The Commission found a number of violations in the case, among these the violation of the family's right to the truth about what happened to Manuel Bolaños, the circumstances of his detention and death, and the location of his remains.  This right, the Commission stated, arises from the State’s obligation to “use all means at its disposal to carry out a serious investigation of violations committed within its jurisdiction to identify those responsible."  Id. at “Analysis” , Section II, at para. 45, citing Velásquez Rodríguez, Judgment of July 29, 1988 at para. 166.  The Commission asserted that because the courts initially failed to investigate into the disappearance of Mr. Bolaños, because the State failed to inform Mr. Bolaños’ family of his death or the location of his remains, and because of the delay in the investigation that finally did occur, the State violated the family’s right to justice and right to know the truth.   

[lix] In some cases, the Commission has not addressed Article 13 in the context of right to truth cases.  See, eg. Case 10.258, Report Nº 1/97, Ecuador, Manuel García Franco, March 12, 1997; Case 10.606, Report Nº 11/98, Guatemala, Samuel de la Cruz Gómez, April 7, 1998; Case 11.275, Report Nº 140/99, Guatemala, Francisco Guarcas Cipriano, December 21, 1999; Cases 10.588 (Isabela Velásquez and Francisco Velásquez), 10.608 (Ronal Homero Nota et al.), 10.796 (Eleodoro Polanco Arévalo), 10.856 (Adolfo René and Luis Pacheco del Cid), and 10.921 (Nicolás Matoj et al.), Report Nº 40/00, Guatemala, April 13, 2000.  An examination of the facts of all of the various right to truth cases seems to indicate that the Commission considers Article 13 to be particularly important in cases dealing with amnesty laws.  This is due to the fact that when an amnesty law is in effect, there is no opportunity for judicial action against the perpetrators of the crime and information becomes the sole means by which family members can achieve some degree of reparation.  Moreover, information is essential in these cases because members of society must be aware of the abuses that have taken place in order to monitor and prevent similar abuses in the future.

[lx] Cases 11.505, 11.532, 11.541, 11.546, 11.549, 11.569, 11.572, 11.573, 11.583, 11.595, 11.657, 11.705, Report Nº 25/98, Chile, Alfonso René Chanfeau Orayce, April 7, 1998.

[lxi] Id. para. 92, citing IACHR, Annual Report, 1985-86 at p. 193.

[lxii] Id. para. 87, citing Castillo Paéz, Judgment of November 3, 1997 at para. 86.

[lxiii] Case 10.480, Report Nº 1/99, El Salvador, Lucio Parada Cea, Héctor Joaquín Miranda Marroquín, Fausto García Funes, Andrés Hernández Carpio, Jose Catalino Meléndez y Carlos Antonio Martínez, January 27, 1999.

[lxiv] Id. para. 151. 

[lxv] Case 10.488, Report Nº 136/99, El Salvador, Ignacio Ellacuría, December 22, 1999.

[lxvi] Id. para 224.

[lxvii] Case 11.481, Report Nº 37/00, El Salvador, Monsignor Oscar Arnulfo Romero y Galdámez, April 13, 2000.

[lxviii] Bámaca Velásquez Case, Judgment of November 25, 2000; Barrios Altos Case, Judgment of March 14, 2001.

[lxix] See Inter-American Court of Human Rights, Enforceability of the Right to Reply or Correction (Articles 14(1), 1(1) and 2 American Convention on Human Rights), Advisory Opinion OC-7/86, Series A Nº 7, August 29, 1986, para. 25.

[lxx] Id. at para. 35.

[lxxi] Id.