ON WORLD PRESS FREEDOM DAY, THE OFFICE OF THE SPECIAL RAPPORTEUR CALLS THE STATES
TO REFRAIN FROM USING CRIMINAL LAWS TO SILENCE VOICES OF CRITICISM
Washington D.C., May 3, 2015. – On the World Press Freedom Day, to be held this May 3, the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR) calls on states to refrain from using the criminal law to silence criticism. The exercise of freedom of expression in the Americas faces several challenges, such as violence against journalists and media, but also continues to be threatened in many countries by the use of criminal law to penalize the expression of opinions and the dissemination of information on matters or public interest involving public officials.
The Office of the Special Rapporteur continues to receive serious reports about the opening of criminal proceedings against journalists, politicians and social leaders for expressing critical views and protest against any kind of political, economic or military power. In recent years, government officials have taken media and its journalists or directors to the criminal courts in Venezuela, Cuba, Ecuador, Honduras, Brazil and Guatemala.
The most recent case occurred in Venezuela, where the President of the National Assembly, Diosdado Cabello, filed criminal charges against journalists, managers and owners of media outlets El Nacional, La Patilla and Tal Cual for reproducing information originally published by a Spanish newspaper that involved him.
In Honduras there were two criminal proceedings recently. One was against journalist Julio Ernesto Alvarado, convicted for the crime of "defamation by constitutive expression of insults" to 16 months of imprisonment, civil interdiction and additional penalties within which the prohibition of practicing journalism for the same period of imprisonment was included. The other case in Honduras refers to women rights defender Gladys Lanza, who was sentenced to one and a half years in prison for making public statements about a case of alleged sexual harassment at the workplace.
While in Nicaragua, a doctor and Army lieutenant was sentenced to prison this year for three and a half months for the offense against military decorum after describing as a "Red Christmas" and criticizing the operation to break up a demonstration against the project of a new canal in that country. In Brazil, the journalist Cristian Goes was recently sentenced to seven months of imprisonment (changed to community services) for the crime of libel, after a minister filed criminal charges because he felt aggrieved by a fictional novel that, from his point of view, alluded to him.
Another method of using the criminal law to silence voices is opening criminal proceedings to the representatives of community radio broadcasting without authorization. This type of actions that penalize the exercise of freedom of expression through radio spectrum were recently seen in Guatemala, Honduras, Brazil and Chile.
The Special Rapporteur appreciates the efforts made by some states to decriminalize contempt, or amend laws that criminalize defamation, libel or slander cases relating to matters of public interest or public officials. However, most states in the region still have criminal laws that do not adapt to the inter-American standards on the protection of freedom of expression, permitting the imposition of disproportionate measures that could have a chilling effect, incompatible with a democratic society. It has even been seen in recent years that governments invoke vague and imprecise other criminal offenses such as terrorism, subversion and incitement to violence to penalize criticism or expressions of protest. A full democratic system should promote public debate and ensure greater openness to expressions and comments made by citizens exercising a democratic control.
The Inter-American Commission, on the precautionary measures granted in favor of Honduran journalist Julio Ernesto Alvarado, convicted for a report on his TV show, stressed that resorting to criminal tools to punish specially protected speech is not only a direct limitation of freedom of expression but also It can be considered as an indirect restriction of expression because of its intimidating, silencing and inhibiting effects over the free flow of ideas, opinions and information of all kinds. In this case the Commission concluded that, given its seriousness and censorship involved, the enforcement of the sentence not only prevents the right to freedom of expression of the proposed beneficiary, but has the ability to render illusory the exercise of the right to speak and disseminate information on matters of public interest.
The Inter-American Court of Human Rights has established that when "the one who partially reproduced published information" by other media is judged, if it was "basically limited to the reproduction of such information" the conviction "involves an excessive limitation on freedom of expression, inconsistent with the provisions of Article 13.2 of the Convention," regardless of the veracity of the information published.
In relation to the honor of public officials and people involved in public affairs, the Inter-American Commission on Human Rights has emphasized 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 actions. In this way, the State guarantees the protection of privacy of all individuals without abusing its coercive powers to repress individual freedom to form opinions and express them."
In situations which are still occurring, the Special Rapporteur for Freedom of Expression would like to take the opportunity of World Press Freedom Day to urge States to repeal laws that establish criminal contempt and defamation cases involving the public interest, amend ambiguous or imprecise criminal laws that put limits to freedom of expression, and incorporate Inter-American civil law standards so that civil proceedings conducted against persons who have made statements on matters of public concern are judged under the standard of actual malice, in accordance with the provisions of Principle 10 of the Declaration of Principles on Freedom of Expression of the IACHR, and which should be proportionate and reasonable.