Freedom of Expression
3 - Chapter II – Assessment of the Situation of Freedom of Expression in the Hemisphere
4. The concept of a right to truthful information[1]
The so-called right to truthful information has been a subject of intense debate across the hemisphere in response to concern and alarm brought on by the press being used as a sensationalist medium or to disseminate news that is not always correct or truthful.
Because freedom of expression and information is so vital to the normal functioning of a democratic society, international laws have accorded it broad protection, with a few clearly stated limitations. This ensures clarity regarding the limitations that are allowed and prevents interpretations that could jeopardize the exercise of this very basic right.
Article 13 of the American Convention on Human Rights, Article 19 of the Universal Declaration of Human Rights, and Article 19 of the International Covenant of Civil and Political Rights clearly reflect the interest in according this right broad protection. As can be seen by reading these articles, no preconditions are placed on freedom of expression and information. All these instruments simply refer to freedom of expression, information and/or opinion.
Under Article 13 of the American Convention, the responsibilities stemming from the exercise of the right to freedom of expression are ex post fact. Prior censorship is expressly prohibited.[2]
Any adjective used to qualify the information would limit the volume of information protected by this right. For example, the right to truthful information would not protect information that, by contrast to truth, we would label erroneous. Hence, any information that might be considered erroneous –a matter that will be discussed at greater length later in this report– would not be protected by that right. However, a correct interpretation of the international norms, especially Article 13 of the Convention, compels us to conclude that the right to information covers all information, including information that we might deem “erroneous”.[3]
First, it is impossible to determine, with absolute certainty, the veracity of most information produce by the individuals. By requiring truthful information, this principle is premised on the notion that there is some single, indisputable truth. One must be careful here to draw a distinction between facts that can be demonstrated, and value judgments. In the latter case, the information cannot be said to be either true or false, and cannot be demonstrated with factual proof. The veracity test might mean almost automatic censorship of any information that cannot be proven, which would virtually do away with any political debate that relies primarily on purely subjective ideas and opinions.
Even in those cases where the information concerns concrete facts that could in all likelihood be factually proven, it is impossible to require the veracity of the information, since any single fact could undoubtedly lend itself to a number of markedly different interpretations. In this regard, John Stuart Mill said that “Even in natural philosophy, there is always some other explanation possible of the same facts (…)”.[4] It must be proven because the other theory cannot be the true one, and as long as this is not shown and as long as we do not know how it was proved, we cannot understand the bases of our opinion. But when we turn to issues that are infinitely more complicated, morals, religion, politics, social relations, and issues of life in general, three quarters of the argument on any opinion discussed is to disprove the arguments that favor any different opinion.
Assuming, for the sake of argument, that one could determine the truth of everything, debate and the exchange of ideas are the best way to go after that truth. Requiring from the outset that only truth be told obviates any possibility of the debate needed to arrive at that truth. Paradoxically, this principle –which holds that only truth must be reported- also precludes or impairs the exchange of ideas and opinions that are part of the quest for the truth.[5]
The possibility of penalties for reporting information that an open debate might prove incorrect, will lead to self-censorship to avoid possible penalties. The entire citizenry will suffer, because they will not be able to have the truth produce by the exchange of ideas. Absolute certainty will frequently be impossible; but just the possibility of making information public, sparks the debate that leads to the truth and the benefits to all mankind.
The Inter-American Court of Human Rights raised this point in Advisory Opinion OC-5/85 on compulsory membership in an association prescribed by law for the practice of journalism:
The two dimensions mentioned of the right to freedom of expression must be guaranteed simultaneously. One cannot legitimately rely on the right of a society to be honestly informed in order to put in place a regime of prior censorship for the alleged purpose of eliminating information deemed to be untrue in the eyes of the censor.[6]
Thus, the effect that this principle has is precisely opposite to the one that its proponents argue as the basis for its application. In other words, the search for truth in information would be severely hampered by inhibiting the free flow of information for fear of possible penalties. The right to freedom of information also protects all the information that we have labeled “erroneous”. In any case, under international law and the most modern jurisprudence, only information that is shown to be erroneous and produced with “actual malice” could be penalized. Even in that case, the sanction should be ex post facto, as information can never be subject to prior censorship.
C. Women and freedom of expression
The Office of the Rapporteur for Freedom of Expression would like to stress the relationship that exists between the situation of women and its impact on the right to freedom of expression and information. The Commission has noted that the member States must endeavor to eliminate any type of measure that discriminates against women leaving them less than full and equal partners in their country’s political, economic, public and social life. The American Convention on Human Rights recognizes the right to equality and nondiscrimination as pillars of strong and healthy democratic systems in the hemisphere.[7]
Although the situation of women has undergone significant change, as they have acquired rights and protections under domestic laws and international human rights treaties,[8] de facto and de jure discrimination against women has not stopped.[9] In its Report on the Status of Women in the Americas,[10] the Inter-American Commission on Human Rights urged the member States to amend or abolish all laws that have the purpose or effect of discriminating against women, to work toward eliminating the practices and structural barriers standing in the way of women’s full assimilation into national life, and to allocate adequate resources to achieve those ends.[11]
Full exercise of the right to freedom of expression and information is essential to ensuring that women’s human rights are protected and respected. Full and unrestricted exercise of this right will allow women to play a greater and more active role in denouncing abuses and in finding solutions that mean greater respect for all their basic rights. Silence is the best ally for perpetuating the abuses and inequalities that have been the lot of the women across this hemisphere.
There are a number of reasons why women suffer inequality in the hemisphere. This report will mention those that have a direct bearing on exercise of the right to freedom of expression and information. They are women’s inequality in educational opportunities, violence against women and the need for women to become more politically involved.[12]
The lack of equal access to education is a direct violation of women’s right to seek and receive information. In the more impoverished sectors of society, a woman’s role has been largely confined to the home, thus diminishing the opportunity she has to receive an education that would increase her chances of participating in public life and seeking employment in a variety of areas.[13]
Statistics from the Social Development Division of the Inter-American Development Bank’s Sustainable Development Department reveal major discrepancies between male and female literacy rates across the world: “In 1990, only 74 women knew how to read and write for each 100 men with those skills. . . . Throughout the world, 77 million girls aged between 6 and 11 do not attend primary school, a level much higher than the corresponding figure of 52 million for boys.”
Violence or fear of violence also curtails women’s freedom of expression and information.[14] Intimidated by the violence, women frequently opt not to report incidents of violence to the authorities, remain in seclusion and do not participate in society.[15] Estimates are that in this hemisphere, anywhere between 30 and 70 percent of adult women with partners are subjected to psychological or physical abuse.[16] At the same time, in some States of the hemisphere adequate measures have not been taken to protect women from violence and prevent it. In some instances, cases of domestic violence reported to the police have been treated as minor offenses, and attempts have been made to dissuade the women from reporting future abuses on the grounds that these are private matters. In some cases, the police have refused to act on the complaints or to offer precautionary measures to protect the victim.[17] Such actions and attitudes relegate women to a subordinate and degrading role, silencing their ability to express themselves and leaving them helpless to take action, thus perpetuating the circle of violence, abuse and discrimination.[18]
It is by active political participation in the democratic institutions of the State that freedom of expression and information plays a basic role in bringing about the needed changes within institutions and society in general, the changes that will improve the lot of women in the hemisphere. This is why it is crucial that greater political participation for women be assured.
As long as women do not play an equal role in political life, democratic, pluralistic societies will never prosper and intolerance and discrimination will only worsen. Women’s inclusion in communication, decision-making and development processes is crucial if their needs, opinions and interests are to be factored into policies and decisions. Women’s access to greater political participation in places where decisions are made will further respect for other basic rights, thereby ensuring the advocacy and defense of policies, laws and practices that protect the rights and guarantees that affect them. [19]
As the Commission pointed out in its Report on the Status of Women in the Americas, there is a sense in the region that for true democracy, women must have a greater role in decision making, and that access to a country’s political life does not end with nondiscriminatory exercise of the right of suffrage.[20] The member States are urged to encourage women’s participation in political life and decision-making in the public and private arenas. Unless and until all members of society participate fully, freedom of expression and information will be in jeopardy.
D. The Internet and freedom of expression
The Rapporteur for Freedom of Expression believes that the Internet is an instrument with the capacity to fortify the democratic system, assist the economic development of the region’s countries, and strengthen full enjoyment of freedom of expression. The technology of the Internet is without precedent in the history of communications and it allows rapid access of and transmission to a universal network of multiple and varied information.
The Internet is a medium with great possibilities because it allows individuals to participate openly in discussions and exchanges of information on issues of interest to them. The global scope of the Internet allows people to communicate and obtain information immediately, regardless of geographical borders and distinctions based on race, sex, religion, or social origin.
Maximizing the population’s active participation through the use of the Internet furthers the political, social, cultural, and economic development of nations by strengthening democratic societies. In turn, the Internet has the potential to be an ally in the promotion and dissemination of human rights and democratic ideas and a major tool in the actions of human rights organizations, because of its speed and breadth which allow it to immediately transmit and receive information on situations affecting fundamental rights in different regions.
The community of American states has explicitly recognized the protecting of the right of freedom of expression in the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights.[21] These instruments allow a broad interpretation of the scope of freedom of expression. Internet content is covered by Article 13 of the American Convention on Human Rights. The Rapporteur urges the member states to refrain from implementing any sort of regulation that would violate the terms of the Convention.
E. Freedom of expression and information in some member states
Restrictions and threats to freedom of expression and information are present in virtually every State of this Hemisphere. Absolute respect for freedom of expression and information is as impossible as absolute respect for other fundamental rights. Nevertheless, States in which the restrictions on freedom of expression and information are part a systematic campaign by authorities to silence criticism of the government, must be distinguished from those in which the restrictions and threats to freedom of expression and information are not symptomatic of systematic persecution by government authorities. In the latter cases, the democratic institutions themselves can find ways to put a stop to such attacks and threats.
Both situations are of concern to the Rapporteur. A State is responsible for the abuses or acts committed. Of the two, however, systematic persecution on the part of government authorities is by far the more disturbing because it threatens other fundamental rights and the preservation of the democratic system of government.
In line with this, the Rapporteur distinguishes three main categories of restrictions on and threats to freedom of expression: 1) States without freedom of expression; 2) States where freedom of expression is severely limited owing to systematic persecution by government authorities to silence their critics; and 3) Other cases.
The Office of the Rapporteur is most concerned with the first two categories, because of the serious implications such situations have for the existence of a democratic society. The cases outlined below are not an exhaustive list of the complaints that this Office received in 1999.
First of all, mention must be made of some cases of progress made by states in defending and protecting freedom of expression.
Progress
Panama
The Annual Report for 1998 stated that there were a number of anachronistic laws in Panama that constituted a legal obstacle to the full exercise of the right to freedom of expression. Public officials frequently used those laws to silence their critics and to harass journalists and the press in general.
The great majority of these laws are still in force in Panama and public officials continue to use them against journalists.[22] Some of the laws restricting freedom of expression and information are: Article 33 of Panama’s Constitution, Articles 202 and 386 of the Judicial Code, Article 827 of the Administrative Code on Correctional Penalties, Articles 307 and 308 of the Penal Code. All these are, in one way or another, a contempt law. Article 903 of the Administrative Code, Cabinet Decree No. 251 of 1969 and Article 177 of the Electoral Code allow censorship. Certain articles of 1978 Law 67 regulate journalistic activities by requiring that those practicing journalism fulfill certain requirements set by the Ministry of Government and Justice.
The new Administration of President Mireya Moscoso has expressed its willingness and has signaled its intention to make it possible to repeal these laws. Two ad hoc committees have been appointed, composed of lawyers and journalists, to study the laws that curtail freedom of expression and information and prepare bills for their repeal or amendment.
In December 1999, the ad hoc committees introduced their first two proposals, which lead to repeal of the laws (the Rapporteur is awaiting the texts for the proper citation).
The commitment, effort and drive that the Administration of President Mireya Moscoso has put behind the goal of repealing or amending the laws that restrict freedom of expression and information are laudable. The Office of the Special Rapporteur is very gratified that two laws have already been repealed. However, the repeal of these two laws is a first step but does not completely dismantle the body of laws that curtail freedom of expression. Any amendment or legal initiative related to freedom of expression and information must conform to the parameters set in Article 13 of the American Convention on Human Rights.
Argentina
The Argentine Senate is now examining a bill to amend the libel and slander law.[23] The Office of the Rapporteur is urging continued action on this bill, which can serve as an example to the other nations of the hemisphere and become one of the most important advances for freedom of expression and information in the years ahead.
1. Restrictions and threats to freedom of expression
a. States without freedom of expression
Cuba
Freedom of expression does not exist in Cuba. Unless and until changes are introduced to democratize the country and the other basic rights are recognized, freedom of expression and information will not grow in Cuba.[24]
Many laws in Cuba restrict freedom of expression and information. The Cuban Constitution provides that no means of communication can be the target of private appropriation, thus “ensuring that all media will be used exclusively to serve the proletariat and the interests of society.” The government censors all foreign material entering the island and arbitrarily refuses entry to foreign journalists.[25]
Chapter VII of the Cuban Constitution, on “Basic Rights, Duties and Guarantees” recognizes freedom of expression, information and the press, but only “in accord with the ends of a socialist society.” Freedom of artistic expression and information is also limited, as the Constitution stipulates “that artistic freedom exists only insofar as its content is not counter-revolutionary.” The Constitution also establishes the legal grounds for censorship, which is that only the State has the authority to determine whether oral or written expression is counter-revolutionary.
The Cuban Constitution also states that “none of the freedoms accorded to citizens may be exercised to challenge the Constitution and laws, or the existence and purposes of a socialist State, or the decision of the Cuban people to build socialism and communism. Violation of this principle is a punishable offense.”[26]
In February 1999, Law No. 88 was enacted, called the Law on Protection of the National Independence and Economy. This law makes it a crime to impart, search for or obtain subversive information or to bring subversive materials into the country, reproduce them or circulate them. It also criminalizes collaboration –either direct or through third parties- with radio or television transmitters, newspapers, magazines or other mass communication media for the purpose of disseminating subversive materials.[27] This law establishes penalties of up to 20 years imprisonment for the authors of these acts and their accomplices. Cuban authorities are using this law to threaten journalists if they persist in activities with which the State is uncomfortable.[28]
Cuban authorities frequently use laws on the books criminalizing certain behaviors, such as enemy propaganda,[29] contempt, state of danger, operation of clandestine printing presses, circulation of unauthorized news, insult to fallen heroes and acts committed against the security of the State, to silence critics and dissidents and to restrict to the maximum freedom of expression and information.
In 1999, the Cuban government tried a number of dissidents and detained more than thirty independent journalists and activists. On March 15, 1999, a court convicted four leaders of the Grupo de Trabajo de Disidencia Interna (GTDI) [Internal Dissidence Working Group] for “acts against the security of the State” and sentenced them to prison. In 1997, this group had published the document La Patria es de Todos, where it analyzed the Cuban economy, suggested amendments to the Constitution, debated human rights issues and criticized the fact that Cuba recognized only one political party.[30]
The following persons are also serving prison sentences: Bernardo Arévalo Padrón, sentenced to six years in 1997 for the crime of speech offensive to President Fidel Castro and Vice President Carlos Lage; Manuel Antonio González Castellanos, arrested in October 1998 and sentenced to two years and six months in prison, and Leonardo Varona González, arrested in October 1998 and sentenced to sixteen months in prison, both for speech offensive to President Fidel Castro; and Jesús Joel Díaz Hernández, Director of the Cooperativa Avileña de Periodistas Independientes, arrested on January 18, 1999, and sentenced to four years’ imprisonment for the crime of “posing a danger to society.”
In September 1999, the Rapporteur received information to the effect that the Cuban government had refused journalist Raúl Rivera, founder and director of the Cuba Press independent news agency, permission to travel to the United States. He was on his way to receive the prestigious María Moors Cabot award that New York City’s Columbia University bestows each year. That same month, journalist Angel Pablo Polanco from the independent news agency Cooperativa de Periodistas Independientes was arrested at his home by State police and his telephone line was cut. The journalist, known for his coverage of the activities of human rights organizations, was accused of participated in illegal activities.
According to information received, on November 10, 1999, during a human rights demonstration staged on the occasion of the Ibero-American Summit in Havana, journalist Angel Pablo Polanco from the Cooperativa de Periodistas Independientes was arrested again, along with journalist Omar Rodríguez from the Agencia Nueva Prensa. That same day, journalists Aurora García del Busto from the Cooperativa de Periodistas Independientes, Ohalis Victores from Cuba Voz and José Antonio Fornaris from Cuba Verdad were placed under house arrest.
In December 1999, journalists Juan González Febles, Adela Soto Alvarez, María del Carmen Carro and Santiago Martínez Trujillo were detained in an apparent maneuver by Cuban authorities to prevent them from reporting on an anti-government protest demonstration. Six other journalists were placed under house arrest: Meri Miranda, Osvaldo de Céspedes, María de los Angeles Gómez, Amarylis Cortina, Ricardo González and Alida Viso.
The cases mentioned here clearly illustrate that freedom of expression and information does not exist in Cuba. The Special Rapporteur urges the Cuban authorities to change their posture with regard to an independent press and dissident voices and to recognize the Cuban people’s right to freedom of expression and information.
b. States where freedom of expression is severely limited
Peru
The Special Rapporteur holds that Peru is lacking the guarantees needed for full exercise of the right of freedom of expression.[31] Between the in loco visit in November 1998 and the publication of this report, there was no progress indicating a positive trend vis-à-vis freedom of expression.
In a number of its reports, the Commission has stated that the judiciary in Peru has little independence and autonomy. As a consequence, there is no effective judicial control of the constitutionality and legality of the government’s acts. This leads to illegalities and abuses of authority.[32]
Given this situation, the independent press is playing a vital role in Peru by reporting the authorities’ irregularities, bringing to light acts that elude the scrutiny of democratic control mechanisms and whose authors find their allies and accomplices among the ranks of the authorities.
As a consequence of these reports, the media and independent journalists and opposition politicians have been the targets of a systematic plan of harassment by intelligence services and police. The attacks have range from threats and smear campaigns to serious human rights violations. Compounding the harassment plan is the judiciary’s passive attitude, as it refrains from conducting serious and effective investigations into the abuses and crimes committed against journalists. The judiciary has also allowed itself to be used as a means to harass and intimidate investigative journalists.
One of the most frequently attacked media outlets in Peru is La República, a newspaper with a reputation as one of the government’s sternest critics. Its publisher, Gustavo Mohme Llona, has received death threats on several occasions, and both he and the newspaper he heads are and have been the target of a campaign clearly intended to offend and tarnish the newspaper and its team of journalists.
Other journalists of the newspaper have also been threatened. The journalist Angel Páez Salcedo, head of the investigative unit of the newspaper and correspondent for Clarín of Argentina, received a death threat in December 1998. As a journalist, he reported on corruption involving Peru’s government officials and military leaders.
In addition, Mohme, Páez, and other journalists of the newspaper have been the target of a smear campaign by various tabloid press media such as Repúdica, which was published in May 1999, but survived only one issue, because the Instituto Nacional de Defensa de la Competencia y la Propiedad Intelectual (National Institute to Defend Competition and Intellectual Property) passed a resolution banning its circulation. Repúdica was replaced by Repudio, which had the same content and objective of discrediting these journalists. Subsequently, in September 1999, a new anonymous publication called Repútica del Gran Sur came out in Puno. Like Repúdica, it also aimed to discredit La República and its publisher. The injured parties filed a complaint requesting a thorough investigation.
Attacks on La República continued in October 1999 when the newspaper received 150 offensive faxes that jammed its telephone lines. It also received numerous threatening and insulting calls targeting the publisher and the editor-in-chief of the newspaper, Blanca Rosales.
The campaign against these newspapers was also carried on, in late 1998, via Internet. The web page was updated from Peru by the so-called Asociación Pro Defensa de la Verdad (APRODEV) (Association for the Defense of the Truth) with material similar in content and tenor to the editorials of certain of the above-mentioned anonymous lampoon media.
Another example of serious violations to the right to freedom of expression is the case of Mr. Baruch Ivcher Bronstein. Mr. Ivcher was born in Israel and acquired Peruvian citizenship in 1984. Under Peruvian law, Peruvian citizens may own shares in companies holding concessions for television channels in Peru. Within this legal framework, Mr. Ivcher owned 53.95% of the equity of Compañía Latinoamericana de Radiodifusión, the company that operates Channel 2, Frecuencia Latina.
In April 1997, Television Channel 2 broadcast news on torture committed by members of the Peruvian Army Intelligence Service. In July 1997, the Peruvian government passed a resolution annulling Mr. Ivcher’s citizenship. Subsequently, in August, 1997, a judge suspended the ownership rights of Baruch Ivcher as president of the television company, prohibited the transfer of shares, and revoked the appointment of Ivcher as president of the firm.
In 1998, the Inter-American Commission on Human Rights issued a report on the case, and found that the Peruvian Government had violated the rights under the American Convention on nationality, due process, freedom of expression, property, and effective judicial protection to the detriment of Mr. Ivcher. Consequently, the Commission filed the case before the Inter-American Court, requesting that it order the Peruvian Government to restore to Mr. Ivcher Peruvian nationality and all the rights and prerogatives of which he had been arbitrarily deprived.
The Office of the Rapporteur also received information that police or army agents would go to the media to request information on the political affiliation of the owners, journalists, and activities of the various media, and also to ask them for copies of programs they broadcast. For instance, in August 1999, in Huancavelica, the Military Commander with Political Authority in the region (Jefatura Político Militar) ordered the media in the area to submit the news content of their radio programs. The memorandum addressed to media managers instructed them “… to make arrangements to send to the Office of the Military Commander with Political Authority, on a daily basis, and beginning from today, information transmitted by his/her radio station. On orders from our superiors, all information broadcast in this emergency zone must be monitored.” A few days later, the Command Headquarters of National Security Sub-Zone for Center No. 8 issued a press release in which it reported that Captain Adolfo Delgado Ruíz had been dismissed and punished, and that charges had been brought against before the Army’s Second Judicial Zone.
Similarly, the Rapporteur received information to the effect that the news program Radio Tigre in Iquitos had been arbitrarily shut down. The report stated that the executives of the radio station were under pressure from the Army who told them to order their employees to stop reporting the irregularities committed by high-ranking members of the Army.
The Rapporteur received information to the effect that in March of 1999, a number of journalists from Radio Marañon were threatened in a variety of ways. For example, two men in hoods shot journalist José Luis Linares Altamirano in his home in Jaén. Reporter Homero Marín Salazar was the victim of an assault in his own home. The director of the radio said that he believed these attacks were part of an intimidation campaign possibly being waged by local groups that were uncomfortable with the programming.
In September 1999, Juan Sánchez Oliva, director of the radio news program Quasar en la noticia in the city of Huaraz, complained that he and his family were the victims of constant threats and aggression. Similarly, Angel Durán, a colleague of Sánchez Oliva, received phone threats that month and in November was shot in the right thigh while on his way to interview the mayor of Alija. The Special Rapporteur had an opportunity to speak by phone with the journalist in the hospital and offered him his support. Journalist Juan Sausa Seclén, a correspondent for La República and journalist for Radio Marañon, also received death threats.
In November 1999, the Commission received a request asking that precautionary measures be ordered for the journalist Guillermo Gonzales Arica, that had been harassed by State agents and agencies because of his journalistic activities. On November 21, the Commission asked the Government of Peru to grant precautionary measures to journalist Guillermo Gonzales Arica.
[1] The concept of truthful information is used here because it has received so much attention of late. However, within this concept we include others, such as the concepts of timely, objective, ample, thorough information, and so on.
[2] Article 13 of the American Convention states the following: “Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.”
In this regard, in The New York Times v. Sullivan case, the United States Supreme Court held the following:
The state rule of law is not saved by its allowance of the defense of truth. A defense for erroneous statements honestly made is no less essential here than was the requirement of proof of guilty knowledge which, in Smith v. California, 361 U.S. 147, we held indispensable to a valid conviction of a bookseller for possessing obscene writings for sale. We said: “For if the bookseller is criminally liable without knowledge of the contents, … he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature… And the bookseller’s burden would become the public’s burden, for by restricting him the public’s access to reading matter would be restricted… [H]is timidity in the face of absolute criminal liability, thus would tend to restrict the public’s access to forms of the printed word which the State could not constitutionally [376 U.S. 254, 279] suppress directly. The bookseller’s self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered. Through it, the distribution of all books, both obscene and not obscene, would be impeded.” A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions –and to do so on pain of libel judgments virtually unlimited in amount- leads to a comparable “self-censorship.”
[3] The analysis we make of the concept of “erroneous” information and its incompatibility with international norms would no doubt apply to all other adjectives used to qualify information, such as out-of-date, incomplete, and so on.
[4] Mill, John Stuart, On Liberty and Other Writings, Chapter 2, Of the Liberty of Thought and Discussion, Cambridge University Press, Cambridge, 1997, p. 38.
[5] In his On Liberty and Other Writings, John Stuart Mill wrote at length on the importance of unfettered and unqualified freedom of opinion and expression. Mill mentions three main reasons why divergent arguments and opinions are essential for freedom of expression and opinion. First, if an opinion is true, there is no better way to consolidate and propagate it than to juxtapose it to error. If the opinion is wrong, the contrast with the truth will clearly point up the error, to the good of all society. Finally, the most common case is when conflicting doctrines share the truth between them and a nonconforming opinion is needed to supply the remaining truth.
Because Mill’s observations are so important, clearly stated and current, the Rapporteur cites some of the passages that are particularly relevant for purposes of pointing up the problem with the concept of truthful information:
But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.
If we were never to act on our opinions, because those opinions may be wrong, we should leave all our interests uncared for, and all our duties unperformed.
There must be discussion, to show how experience is to be interpreted. Wrong opinions and practices gradually yield to fact and argument: but the facts and arguments, to produce any effect on the mind, must be brought before it. Very few facts are able to tell their own story, without comments to bring out their meaning.
[6] See Inter-American Court of Human Rights, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 of the American Convention on Human Rights), Advisory Opinion OC-5/85 of November 13, 1985. Series A No. 5, para. 33.
[7] See IACHR, Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L/V/II92 rev.3, May 3, 1996. Article 3(k) of the Charter of the Organization of American States upholds as one of its principles “the fundamental rights of the individual, without distinction as to race, nationality, creed or sex.”
[8] That document gives a general idea of the system and includes texts of instruments, norms and statutes related to human rights. See also the Convention on the Elimination of All Forms of Violence against Women, December 18, 1979, 19 I.L.M. 33 (1980).
[9] The civil codes of some countries still have laws on the books that deny a woman’s right to administer conjugal assets, that limit her parental authority over her children, and that authorize a spouse to prohibit his wife from obtaining employment outside the home. (See the María Eugenia Morales de Sierra Case with the Inter-American Commission on Human Rights, March 1998).
[10] On March 6, 1998, the Inter-American Commission on Human Rights named one of its members, Dean Claudio Grossman, to serve as Special Rapporteur for women’s rights. The Report of the Inter-American Commission on Human Rights on the Status of Women in the Americas, adopted March 6, 1998.
[11] See Report of the Inter-American Commission on Human Rights on the Status of Women in the Americas”, OEA/Ser.L/V/II.100 of October 17, 1998, p. 16.
[12] Other practices also affect women’s freedom of expression. This report concentrates on these three because they are deemed to be the ones with the greatest impact on free expression. Nevertheless, the discrimination against women in the labor area also affects freedom of expression and information. Discriminatory policies on the part of businesses and corporations are tolerated in some countries, and these policies have the effect of limiting women’s chances for an equal role in public life and give them less of a voice in opinions and decisions.
[13] Statistics developed by the Division of Social Development of the Inter-American Development Bank’s Sustainable Development Department reveal significant discrepancies between men and women with regard to literacy levels worldwide: “Global literacy statistics show that in 1990, there were only 74 women for every 100 literate men. …. Schooling statistics show a similar trend worldwide, 77 million girls of primary school age (6-11 years old) are out of school, compared with 52 million boys.” See, Mayra Buvinic, Women in poverty: a global problem. Washington, D.C,, July 1998-No. WID-101.
[14] In December 1993, the United Nations General Assembly approved the Declaration on the Elimination of Violence against Women. Article 1 defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.”
[15] The Pan American Health Organization emphasized that according to studies done in a number of Latin American countries, estimates are that only between 15 and 20 percent of the incidents of intrafamily violence against adult women are reported. CEFEMINA, 1994. Mujeres Hacia del 2000: Deteniendo la Violencia, San José, Costa Rica: Programa “Mujer No Estás Sola”CEFEMINA: in La ruta crítica que siguen las mujeres afectada por la violencia intrafamiliar, Pan American Health Organization, Research Protocol, p. 5 (Washington, 1998).
[16]Inter-American Development Bank. Sustainable Development Department. Publication: Violence in Latin America and the Caribbean: A Framework, March 1999.
[17] Human Rights Watch Report 1999: Violence Against Women. At www.hrw.org (Women’s Human Rights p. 2).
[18] At the regional level, in Article 5 of the Convention of Belém do Pará” or the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, adopted by the General Assembly of the Organization of American States on July 9, 1994, the States recognize that violence against women prevents and nullifies the exercise of their fundamental rights.
[19] A statistical study into worldwide female participation in parliaments conducted by the Inter-Parliamentary Union revealed that women occupy only 15.3% of the available seats in the upper and lower chambers of the congresses of the Americas. See http://www.ipu.org/wmn-e/world.htm.
[20] IACHR, Report on the Status of Women in the Americas, published October 13, 1998.
[21] Article IV of the American Declaration of the Rights and Duties of Man states that: “Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever.” Similarly, Article 13.1 of the American Convention states that: “Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.”
[22] The newspaper Panamá América reported on February 25, 1999, that the contempt laws had been used to institute more than 86 legal proceedings against journalists in recent years.
[23] See the full text of the bill in Appendix Nº 4.
[24] See IACHR, 1998 Annual Report, Report of the Rapporteur for Freedom of Expression, April 16, 1999, pp. 34-35.
[25] In January 1998, Cuba denied visas to Argentine journalists Matilde Sánchez from the newspaper Clarín, Mario Perez Colman from the newspaper La Nación and Rodolfo Pousá of Américas TV, who were trying to cover Pope John Paul II’s visit to Cuba.
[26] Article 62 of the Constitution of Cuba.
[27] Law No. 88 on Protection of Cuba’s National Independence and Economy, articles 1, 5(1) and 6(1), February 17, 1999.
[28] See press communiqué No. 4/99 from the Office of the Rapporteur for Freedom of Expression, dated February 18, 1999.
[29] Article 8 of 1997 Law No. 80 on Reaffirmation of the National Dignity and Sovereignty provides that “the full force of this law will be used against anyone who either directly or indirectly collaborates with the enemy’s information media.”
[30] The four people are Martha Beatriz Roque Cabello, economist, sentenced to three years six months in prison; Vladimiro Roca, economist, sentenced to five years; Félix Antonio Bonne Carcassés, engineering professor, sentenced to four years; and René Gómez Manzano, attorney, sentenced to four years.
[31] On November 8, 1999, the United States Senate adopted Resolution No. 209, expressing its concern regarding interference in press freedoms and in the independence of the judiciary and stating that:
Whereas the Department of State's Country Report on Human Rights Practices for 1998, dated February 26, 1999, concludes, with respect to Peru, that `government intelligence agents allegedly orchestrated a campaign of spurious attacks by the tabloid press against a handful of publishers and investigative journalists in the strongly pro-opposition daily La Republica and the other print outlets and electronic media';
and, Whereas on July 13, 1997, Peruvian immigration authorities revoked the Peruvian citizenship of Baruch Ivcher, the Israeli-born owner of the Channel 2 television station; and,
Whereas Baruch Ivcher subsequently lost control of Channel 2 under an interpretation of a law that provides that a foreigner may not own a media organization, causing the Department of State's Report on Human Rights Practices for 1998 to report that `threats and harassment continued against Baruch Ivcher and some of his former journalists and administrative staff . . . In September Ivcher and several of his staff involved in his other nonmedia businesses were charged with customs fraud. The Courts sentenced Ivcher in absentia to 12 years imprisonment and his secretary to 3 years in prison. Other persons from his former television station, who resigned in protest in 1997 when the station was taken away, also have had various charges leveled against them and complain of telephone threats and surveillance by persons in unmarked cars': Now, therefore, be it Resolved,
SECTION 1. SENSE OF THE SENATE ON ANTIDEMOCRATIC MEASURES BY THE GOVERNMENT OF PERU.
It is the sense of the Senate that--
(1) the erosion of the independence of judicial and electoral branches of the Government of Peru and the blatant intimidation of journalists in Peru are matters of serious concern to the United States;
(2) efforts by any person or political movement in Peru to undermine that country's constitutional order for personal or political gain are inconsistent with the standard of representative democracy in the Western Hemisphere;
(3) the Government of the United States supports the effort of the Inter-American Commission on Human Rights to report on the pattern of threats to democracy, freedom of the press, and judicial independence by the Government of Peru; and
(4) systematic abuse of the rule of law and threats to democracy in Peru could undermine the confidence of foreign investors in, as well as the creditworthiness of, Peru.
On November 24, 1999, the Argentine Chamber of Deputies unanimously adopted the following statement:
To express its consternation and profound concern at the attitude taken by the Peruvian State in stripping Mr. Baruch Ivcher Bronstein of his nationality in order to eliminate his control over Channel 2, Frecuencia Latina, and thus curtail his freedom of expression, when that channel was known to report serious human rights violations and cases of corruption.
The basis for this Resolution states that freedom of expression is:
A fundamental right for the maintaining the democratic system, since it is the citizens who must, through their votes, periodically judge their rulers. As representatives of the Argentine people and members of a state that claims to be committed to world peace and democracy, we cannot divert our gaze from such a serious act of violence that does not only harm the journalist in question but also deprives the people of Peru as a whole, our brothers, of elements for forming critical opinions of their representatives.
[32] In its 1998 Annual Report, the Commission wrote that the limited independence of the Peruvian Judiciary had created a climate of juridical insecurity for the exercise of journalism, compounding a wave of death threats and a campaign to persecute and smear journalists critical of the government.