Freedom of Expression

4 - Chapter III - Legislation and Freedom of Expression




A.                  Legislation and Freedom of Expression


1.                  Access to Information


1.                  The Office of the Special Rapporteur for Freedom of Expression is currently  preparing a special report on the right to access to information held by the State and the habeas data writ, which will be published in the year 2001. The Office of the Special Rapporteur considers that the right to access to information is one of the fundamental rights in the strengthening of democratic systems. The existence of procedures that guarantee this right to citizens contributes to accountability in administrative management by fostering greater individual involvement in matters of public interest.


2.                  At the end of May, the Office of the Special Rapporteur and Guatemala’s Office of the Presidency jointly organized an international conference entitled “The Right to Access to Information in Guatemala” [“El derecho al acceso a la información en Guatemala”].  The purpose of the conference was to underscore the important role that the right to access to information held by the state and the habeas data writ play in a democratic society, and the need to appropriately adapt legislation in this area.  Additionally, with the assistance of the Office of the Special Rapporteur, the Guatemalan government drafted a bill on access to information held by the State, a process that included the broad participation of Guatemalan civil society.  This bill, and the organization of the conference, were the result of a cooperation agreement entered into by the Office of the Special Rapporteur and the Guatemalan government following the Special Rapporteur’s visit to Guatemala in April 2000.  Both parties agreed to work together to promote far-reaching, lasting freedom of expression in the country.  The Special Rapporteur hopes that the bill will be introduced as soon as possible and, after debate, that it will be enacted and incorporated into the domestic legislation of Guatemala.


3.                  During 1999, the Office of the Special Rapporteur sent a survey to OAS member States requesting information about the constitutional and legal standards and the regulatory system in place in each country related to enjoyment of the right to access to information and habeas data.  Of the thirty-five member countries in the Organization of American States, only nine (25.7%) responded officially to the Office of the Special Rapporteur’s request for information.


4.                  Based on the information obtained up to this moment, there are clear distinctions between countries that have already developed constitutional and legal standards  and  those  that continue  to  rely on  general  standards  such as the “right  to amparo” (protection) or “freedom of expression and opinion” to safeguard the right to information.  Without taking into consideration those countries that have not responded to the Special Rapporteur’s request for information, it can be stated that few countries have specific and clear norms with respect to the right to access to information and habeas data.    


2.                  Desacato, or Contempt, Laws


5.                  Desacato, or contempt laws, violate the human right to freedom of expression as it is expressed in numerous international instruments, including the American Convention on Human Rights and the Universal Declaration of Human Rights.  International organizations, including the Commission and the Office of the Special Rapporteur for Freedom of Expression, and NGOs around the world have uniformly expressed the need to abolish such laws, which limit free speech by punishing speech that shows disrespect towards public officials.  Such limitations restrict the public debate that is so fundamental for the effective functioning of a democracy. Despite the near-universal condemnation of these laws, they continue to exist in one form or another in at least 17 states in the Americas.  In addition, many of these and other states continue to have criminal libel, slander and defamation laws, which are frequently used in the same manner as desacato laws to silence governmental critics.  


6.                  The Inter-American Commission on Human Rights undertook an analysis of the compatibility of desacato laws with the American Convention on Human Rights in a 1995 report.[1] The Commission found that such 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.”[2]  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.”[3]  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.”[4]  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.”[5]  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.


7.                  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.[6]


8.                  In order to ensure that freedom of expression is properly defended, states should reform their criminal libel, slander and defamation laws so that only civil penalties may be applied in the case of offenses against public officials.  In addition, liability for offenses against public officials should only occur in cases of “actual malice.”  “Actual malice” means that the author of the statement in question acted with the intention to cause harm, was aware that the statement was false or acted with reckless disregard for the truth or falsity of the statement.


9.                  These standards are enshrined in the Declaration of Principles on Freedom of Expression, promulgated by the Office of the Special Rapporteur for Freedom of Expression, and approved by the Commission at its October 2000 sessions.  The Declaration is meant to be a definitive interpretation of Article 13 of the Convention.  Principles 10 and 11 deal with offenses against reputation and honor, including desacato laws:


10.              Privacy laws should not inhibit or restrict investigation and dissemination of information of public interest.  The protection of a person’s reputation should only be guaranteed through civil sanctions in those cases in which the person offended is a public official, a public person or a private person who has voluntarily become involved in matters of public interest.  In addition, in these cases, it must be proven that in disseminating the news, the social communicator had the specific intent to inflict harm, was fully aware that false news was disseminated, or acted with gross negligence in efforts to determine the truth or falsity of such news.


11.              Public officials are subject to greater scrutiny by society.  Laws that penalize offensive expressions directed at public officials, generally known as desacato laws, restrict freedom of expression and the right to information.


10.              Other organizations in the international community have reached the same conclusion with regard to desacato laws and other laws that protect the honor and reputation of public officials. Abid Hussain, the UN Special Rapporteur on Freedom of Opinion and Expression, Freimut Duve, OSCE Representative on Freedom of the Media, and Santiago Canton, (hereinafter the Rapporteurs) met for the first time in London on November 26, 1999 under the auspices of Article XIX, the global nongovernmental organization which takes its name from the Universal Declaration of Human Rights’ article protecting freedom of expression. The Rapporteurs issued a joint declaration that included the following statement: “In many countries laws are in place, such as criminal defamation laws, which unduly restrict the right to freedom of expression.  We urge states to review these laws with a view to bringing them in line with their international obligations.” At another joint meeting in November of 2000, the Rapporteurs adopted another joint declaration, which elaborated on the problem of desacato and criminal defamation laws.  In this Declaration, the Rapporteurs advocated the replacement of criminal defamation laws with civil laws and stated that the State, objects such as flags or symbols, government bodies and public authorities should be banned from bringing defamation actions.  They went on to say that “defamation laws should reflect the importance of open debate about matters of public concern and the principle that public figures are required to accept a greater degree of criticism than private citizens; in particular, laws which provide special protection for public figures, such as desacato laws, should be repealed[.]”


11.              In his January 2000 report, the UN Special Rapporteur on Freedom Opinion and Expression also spoke out against criminal defamation laws and, in particular, laws providing special protection for public officials.[7]  He called upon countries to eliminate the power of governmental organs and public officials to bring charges for defamation on their own behalf.  Only civil remedies should be available for defamation, he asserted, and offenses like “defamation of the state” should be abolished altogether.  Moreover, any monetary damages must be reasonable and proportional, in order to ensure that the possibility of punishment does not have a “paralyzing effect” on freedom of expression.[8]  Finally, he stated that the burden of proof in these cases should be on the alleged defamed party to prove falseness.          


12.              In March 1994, the Inter-American Press Association (IAPA) held a hemispheric conference on freedom of the press at Chapultepec Castle in Mexico City.  The conference brought together political leaders, writers, academics, constitutional lawyers, editors and private citizens from around the hemisphere.  The conference produced the Declaration of Chapultepec, a document containing ten principles that are necessary to provide the level of freedom of the press that is sufficient to ensure a true participatory democracy.   This declaration has been signed by the Heads of State of 21 of the regions’ States and is widely regarded as a model standard for freedom of expression.[9]   With respect to desacato laws, the Declaration states in Principle 10, “No news medium nor journalist may be punished for publishing the truth or criticizing or denouncing the government.”  IAPA issued a document interpreting these principles, in which it stated that there should only be legal liability for defamation of “public officials, public figures or private individuals involved in matters of public interest” if the plaintiff can prove ”the falsehood of the facts published and actual knowledge of its [sic] falsehood” and “direct malice by the journalist or communications outlet.”  This is essentially the “actual malice” standard that is advocated by the Special Rapporteur.


13.              Article XIX promulgated a set of Principles on Freedom of Expression and Protection of Reputation.[10]  These principles, which were drafted by an international panel of experts on freedom of expression issues, “are based on international law and standards, evolving state practice (as reflected, inter alia, in national laws and judgments of national courts), and the general principles of law recognised by the community of nations.”[11]  They are intended to serve as a guide to all States as to the extent to which the fundamental human right of freedom of expression can be limited in order to protect the legitimate interest of reputation.  The conclusion made in the document is that such restrictions must be “narrowly drawn” and “necessary” to achieve that legitimate purpose.  Principle 4(a) states that “all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws.”[12]  In no case should an individual be held criminally liable for defamation “unless it has been proven that the impugned statements are false, that they were made with actual knowledge of falsity, or recklessness as to whether or not they were false, and that they were made with a specific intention to cause harm to the party claiming to be defamed,”[13] according to Principle 4(b)(ii).  In Principle 7, the requirements for proof of truth are set forth, stating that “on matters of public concern, the plaintiff should bear the burden of proving the falsity of any statements or imputations of fact alleged to be defamatory.”[14]  Principle 8, regarding public officials, states that “Under no circumstances should defamation law provide any special protection for public officials, whatever their rank or status.  This Principle embraces the manner in which complaints are lodged and processed, the standards which are applied in determining whether a defendant is liable, and the penalties which may be imposed.”[15]


a.         Desacato Laws in the Americas


14.              The 1998 Annual Report of the Special Rapporteur for Freedom of Expression listed seventeen countries in the region which continued to have desacato laws.  To date, none of these laws has been repealed.




Penal Code[16] 


Article 162.  Persons who by any means slander, libel or insult a public official  in the performance of his functions or by reason of them shall be punished by imprisonment ranging from one month to two years.


If the previous acts were directed against the President or Vice-President of the Republic, State Ministers, or members of the Supreme Court or of Congress, the punishment will be enhanced by half. 


15.              The Penal Code also provides for two-month to four-year prison sentences or labor sentences for libel, defamation, slander or offense to the memory of the deceased.  Article 286 establishes a defense of truth to defamation or libel proceedings when the injured party is a public official and the offense relates to his or her duties.






Penal Code


Article 331.  Showing contempt for a public official in the performance of his functions or by reason of them is punished by imprisonment of 6 months to two years, or a fine.




Penal Code


Article 263. Anyone who by word or action commits aggravated slander against the President of the Republic, or a member of one of his governing bodies or their assignments, whether it be in the public acts where they are represented, or in the performance of their specific duties, or the superior courts of justice, shall be sanctioned with lesser incarceration of medium to maximum degree and a fine of eleven to twenty minimum wages.


When the insulting statements are slight, the penalties shall be lesser incarceration of minimum degree and a fine of six to ten minimum wages, or simply the latter.


Article 264. Persons who commit the following acts are considered to be acting in contempt against security:


1.         Those who cause serious disruption of the sessions of the governing bodies or those who threaten or defame an accused person or a senator during the sessions;


2.         Those who cause serious disruptions of the court hearings and those who defame or threaten a member of said court in such hearings.


3.         Those who defame or threaten: first, a senator or representative for opinions expressed during a Congress; second, a member of a court of justice for a sentence he has dictated; third, State ministers or such authorities in the performance of their official duties and fourth, a superior officer in the performance of his/her duties.


Article 265. If the accusation of insult consisting of disturbing the peace, or slander or threat, referred to in the previous article, is deemed grave, the guilty party shall be punished by lesser incarceration of any degree and a fine of eleven to twenty minimum wages. If the crime is deemed slight, the penalties shall be lesser incarceration of minimum degree and a fine of six to ten minimum wages.


Article 266. For purposes of the preceding provisions, it is understood that the ministers of government and other authorities with permanent duties or those who are called upon to exercise such duties in any case and in all circumstances exercise that authority continuously. 


It is also understood that an authority is offended in the performance of his functions when the threat or insult takes place as a result of the performance of the duties or as a result of his office.


State Security Law


Article 6. Crimes against the public order are committed by:


 . . .

b)         Those who publicly insult the flag, the national coat of arms, the national anthem and those who libel, offend or slander the President of the Republic, Ministers of State, Senators or Representatives, Members of Superior Courts of Law, the Attorney General of the republic, the commander in chief of the armed forces or the director general of the Carabineros, whether or not the libel, offense or slander is related to the official duties of the offended party[.]


Code of Military Justice


Article 284. One who threatens in the terms of Article 296 [threats against persons or property] of the Penal Code, offends or defames, verbally, in writing or using any other means, the Armed Forces, one of its members, units, divisions, or specific class or corps, shall be sanctioned with lesser incarceration, in its minimum to medium degree.


16.              Provisions in the Penal Code allow for a defense of truth in the case of libel or slander against a government employee with regard to facts related to his or her post. 


17.              The Law of Advertising Abuses, in Article 12, also provides that the director of a news medium “will be punished as the author of the crime of contempt (desacato)” if he or she disobeys an order to publish a retraction of a statement.  The penalties include lesser incarceration, fines and suspension of publication or transmission.


18.              In April 2001, the House of Representatives approved a law called the “Ley sobre Libertades de Opinión e Información y Ejercicio del Periodismo” (“Law on Freedom of Opinion and Information and the Practice of Journalism”), which among other provisions, modifies Article 6(b) of the State Security Act.[17]


Costa Rica


Penal Code


Article 307. Any person who offends the honor or decorum of a public official or threatens him by reason of his functions, addressing him personally or publicly or by written, cable or telephone communication, or by line of authority, shall be punished by imprisonment of one month to two years. 


The penalty shall be six months to three years, if the offended party is the President of the Nation, a member of the supreme powers, a judge, a magistrate of the Supreme Election Board, or the Comptroller or Assistant Comptroller-General of the Republic.


19.              On February 1, 2001, Costa Rican President Miguel Angel Rodríguez announced his commitment to work for the repeal of Costa Rica’s desacato law.  This announcement came at the end of a four-day mission to Costa Rica of the World Press Freedom Committee.  The president also said that he would support the reform of Costa Rica’s defamation laws.  A committee of journalists and judges has been created to begin considering how this may be accomplished.  The Special Rapporteur expresses his approval of these pledges and offers his support of the Costa Rican endeavors.      



Penal Code


Article 144.1. Any person who threatens, slanders, libels, defames, insults, or in any way offends or affronts, in speech or in writing, the dignity or decorum of an authority or public official, or their agents or aides, in the performance of their functions or on the occasion or by reason of them, shall be punished by deprivation of freedom for a term ranging from three months to one year or a fine of one hundred to three hundred cuotas (daily wages) or both.


2.         If the act referred to in the previous section is committed against the President of the Council of State, the President of the National Assembly of Popular Power, the members of the Council of State or the Council of Ministers or the Delegates to the National Assembly of Popular Power, the punishment is deprivation of freedom of one to three years.


Article 204. One who publicly defames, denigrates or slights the institutions of the Republic, the political organizations, the social groups of the country, or the heroes and martyrs of the Fatherland, shall incur a sanction of deprivation of liberty for three months to one year or a fine of one hundred to three hundred cuotas.




Penal Code


Article 230. Whoever offends the president of the Republic or the person acting as chief executive with threats, menaces or slander is subject to six months to two years of prison and fines of 100 to 500 sucres.


Article 231. Whoever resorts to threat, slander, violence or similar actions against civil servants listed in article 225 when the latter exercise their functions, or as result of said exercise, shall be penalized with imprisonment from 15 days to 3 months and a fine from 50 to 300 sucres.  Those who commit offenses included in the previous clause against another public official lacking jurisdiction shall be punished with imprisonment from eight days to one month.


Article 232. One who fails to show respect to any court, corporation or public official when he is exercising his duties, with contemptuous words, gestures or actions, or who disturbs him or interrupts him when he is acting shall be punished with eight days to one month imprisonment.


Article 233. The same penalties apply to one who insults or offends any person who is appearing before or in the presence of the courts or public officials.


El Salvador


Penal Code


Article 339. Whoever offends the honor or decorum, by deed or word, of a public official in the performance of his duties, or threatens such an official verbally or in writing, shall be punished with a prison term of six months to three years. 




If the injured party is the President or Vice President of the Republic, a Deputy to the Legislative Assembly, a Minister or the Assistant State Secretary, a magistrate of the Supreme Court of Justice or Court of Appeals, a lower court judge, or a justice of the peace, the sanction may be enhanced by one-third of the maximum sentence.




Penal Code


Article 411. Whoever offends the dignity or honor of, or threatens, insults or defames any of the presidents of state organs shall be punished with one to three years in prison.


Article 412. Any persons who threaten, insult, or slander or in any other way offend the dignity or decorum of a public official or authority in the performance of his functions or on occasion of them shall be punished with a prison term of six months to two years.


Article 413. The accused of slander against officials or public authorities shall be allowed to submit proof of his imputation if it refers to acts performed in the exercise of their duties. In this case, if the imputation is proven correct, he shall be absolved.


20.              These laws contradict Guatemala’s own Political Constitution. Article 35 of the Constitution, which governs the right to freedom of expression, states the following with respect to desacato:


Article 35. The publications that contain denunciations, criticisms or accusations against officials or public servants for acts done in the exercise of their duties do not constitute a violation of law or offense.


Officials and public servants may demand that a non-judicial court made up in the form determined by law, declare that the publication which affects them is based on inexact facts or that the charges against them are unfounded. The verdict that vindicates the offended party shall be published in the same media that published the accusation.


21.              This Article also provides that the right to freedom of expression shall be governed by the Constitutional Law on Expression. The law’s status as a constitutional law means that it also supercedes the Penal Code. The Constitutional Law on Expression states in Article 35:


Criticism of public employees or officials for purely official acts performed as part of their official position shall not constitute the crime of slander or libel, even if they have left those public offices at the time that the accusations are made.




Penal Code


Article 183. Whenever one or several administrative or other judges or a commander of a commune, in the performance of their duties or on the occasion of such performance, have been subjected to insults, whether verbally or in writing, which tend to jeopardize their honor or their sensitivities, the person who has insulted them shall be punished by imprisonment for no less than three months and no more than one year.


Article 184. Insults by way of gestures or threats against a judge or a commune commander while in the performance of their duties shall be punished by imprisonment for no less than three months and no more than one year.


Article 185. Insults by way of words, gestures or threats, to any ministerial officer or agent in charge of law and order, while in the performance of their duties or on the occasion of such performance, shall be punished by a fine of no less than sixteen and no more than forty gourdes.


Article 390-10. They shall be punished by a fine of from two to up to and including four piasters who without provocation proffer insults against any individual other than those provided in Articles 313 through 323.


Article 393. The persons covered by Article 390 shall in all cases be sentenced to imprisonment for three days.




Penal Code


Article 323. Anyone who offends the President of the Republic in his physical integrity or in his liberty shall be sanctioned with incarceration of eight to twelve years.


Article 325. The crimes addressed in the three prior articles committed against the Secretaries of State, Delegates of the National Congress and Magistrates of the Supreme Court of Justice, shall be sanctioned respectively with the penalties stated in said articles, reduced by one fifth.


Article 345. The penalty of two (2) to four (4) years of incarceration shall be applied to anyone who threatens, defames, slanders, insults or in any way offends the dignity of a public authority as a result of his functions, whether it is done verbally or in writing.


If the offended person is the President of the Republic or a senior official stated in Article 325 above, the period of incarceration shall be three (3) to six (6) years.


Article 158. The person accused of slander may not present evidence of the truth of the imputation, unless the offended party is a public official or employee and it relates to facts about the offended party’s duties. In this case the accused person shall be exonerated if he proves the truth of the imputation.


[1] IACHR, OAS/Ser. L/V/II.88, Doc. 9 rev., February 17, 1995, supra note 3, 197-212.

[2] Id. at 212.

[3] Id. at 207.

[4] Id.

[5] Id. at 209.

[6] Id. at 211.

[7] Los Derechos Civiles y Políticos, en Particular Las Cuestiones Relacionadas con la Libertad de Expresión, UN Doc. No. E/CN.4/2000/63, January 18, 2000 (also available in English under the same document number).

[8] Id. at para. 49.

[9] The Heads of State of the following governments have signed the Declaration of Chapultepec, pledging themselves to abide by its terms: Argentina, Bolivia, Belize, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Grenada, Guatemala, Honduras, Jamaica, Mexico, Nicaragua, Panama, Puerto Rico, Uruguay, United States, Dominican Republic.

[10] Article XIX, supra note 49.

[11] Id., Introduction.

[12] Id., Principle 4(a).

[13] Id., Principle 4(b)(ii).

[14] Id., Principle 7.

[15] Id., Principle 8.

[16] The Printing Law of January 19, 1925, provides for a different process for journalists than for regular citizens in cases of libel, slander and defamation.  Article 28 states:

The printing violations of the law must be heard by a jury, without distinction of jurisdiction; however, the crimes of slander and libel against individuals shall go optionally before a jury or the common court. The public officials who are attacked by the press as a result of their functions can only file a complaint before a jury. However, if public officials are slandered, defamed or libeled personally with the purpose of combating their actions, they may file a criminal complaint before the ordinary court. When the ordinary court hears the crimes of press, it shall apply the penalties of the Penal Code. But, if the author or responsible person gives before the judge and via the media a complete and ample explanation or apology to the aggrieved party, and he accepts the terms of said explanation or apology, then the penalty shall be deemed fulfilled.

Article 15 provides that those offenses that go before the jury exclusively are punishable only by fines.

[17] For more information, see Chapter IV, section corresponding to the situation of freedom of expression in Chile.