Freedom of Expression

Press Release 73/03


The Office of the Special Rapporteur for Freedom of Expression has drafted its Report on the Situation of Freedom of Expression in the Americas.  It is part of the Annual Report of the Inter-American Commission on Human Rights (IACHR), which was presented this week to the Permanent Council of the Organization of American States.  This is the fifth such Report prepared by the Office since it was established in 1998 under the aegis of the IACHR.  During the course of 2002, following an evaluation of candidates who competed publicly for the position, the IACHR made its first change of Special Rapporteur for Freedom of Expression when it selected Eduardo Bertoni to replace Dr. Santiago A. Canton, the incumbent up to that point.  Bertoni took office in May 2002.


In the introduction to his first report as Special Rapporteur, Bertoni paid tribute to the work of his predecessor.  He recognized the rising expectations of the inter-American community in this field, pointing out that “this rise (...) generates a new challenge: to strengthen the function of the Office to enable most of those expectations to be met.”  To that end, the Report stresses the need to mobilize the requisite financial backing—in addition to the institutional political support that has buttressed the Office since its inception—indispensable to its proper functioning and the execution of mandated activities.  The Report urges the countries of the region to follow the example of those States who do lend financial support to the effort, a list that includes Argentina, Brazil, the United States of America, Mexico and Peru.  Likewise, the Report expresses appreciation for the contribution and renewed support extended by the Swedish International Development Cooperation Agency (SIDA), which maintains keen interest and confidence in the Office’s work and activities. 

As to the general situation in the hemisphere, Bertoni remarks that “the assassination of journalists continues to represent a serious problem for freedom of expression and information in the Americas.  It not only violates the right to life but leaves all other social communicators in a state of extreme risk and vulnerability.  Sadly, too many of these crimes go unpunished.”  He observes further that freedom of expression “is one of democracy’s most cherished rights.  Yet practices unfortunately subsist in the hemisphere that seek to restrict it. (...) Journalists, human rights defenders, and ordinary people exercising the right find themselves hauled into court to face criminal contempt charges or accusations of slander whenever they take a critical position on matters of public interest.  This hardly contributes to fostering a climate where freedom of expression can flourish unimpeded.


The Report goes on to mention that the Office has received expressions of concern from some member States and representatives of society that media behavior is not always responsible or ethical.  Bertoni addresses this issue by underscoring that “ the communications sector is primarily answerable to the public, not the Government.  The fundamental role that the media play in a democracy is to inform the public.  That function is of primordial importance, as is the media’s own awareness of their role particularly in times of crisis.   But the threat of legal sanctions imposed on journalists who adopt positions based on their subjective or professional judgment would have a chilling effect on the industry.  Moreover, unethical behavior can never justify aggression against the media or other workers in the communications field.”


The Report also expresses the concern of civil society—and that of the media itself—about practices that may be becoming entrenched as ever vaster communications conglomerates active in press, radio and television circles in effect jeopardize the free flow of plural and differing opinions.  Bertoni states in that regard that “the Declaration of Principles on Freedom of Expression drafted by the Office of the Special Rapporteur and adopted by the Inter-American Commission on Human Rights is abundantly clear on this point: media monopolies or oligopolies do affect freedom of expression.”  He added that the Office will closely follow matters in this area with a view to issuing informed recommendations that may best suit the particular circumstances of each member State as the phenomenon develops there.

The 2002 Annual Report is divided into six chapters, which are summarized below.


Chapter I of the Report considers the Mandate and Jurisdiction of the Office and reviews the activities carried out during 2002.  Among those related to promotion and dissemination, it is worth mentioning the Annual Meeting of the Three Rapporteurs for Freedom of Expression, which was held in London last December, hosted by the non-governmental organization ARTICLE XIX.  On that occasion, OAS Special Rapporteur Eduardo Bertoni, UN Special Rapporteur for Freedom of Opinion and Expression Ambeyi Ligabo, and OSCE Representative for Freedom of the Media Freimut Duve all expressed their ongoing “attention to the constant abuse by legislatures—and even by politicians and other public figures—of the charge of criminal defamation”.  Another noteworthy event involving promotion and dissemination was Rapporteur Bertoni’s presentation to the Commission on Juridical and Political Affairs of the Permanent Council of the Organization of American States.  Additional important activities that the Office is mandated to carry out relate to country visits.  Over the course of 2002, the Special Rapporteur visited Venezuela, Haiti and Chile, where he met with government employees as well as journalists and diverse workers in the communications sector, among other representatives of civil society.


Chapter II contains a description of certain aspects of the situation regarding freedom of expression in the Americas.  The Report notes the worrisome fact that during 2002, 10 media workers were assassinated in OAS members States while they were exercising their professional duties.  Additionally, the arbitrary use of criminal slander and libel charges to stifle criticism of civil servants continued and scant progress was noted regarding the promulgation of laws to protect the right of access to information, a matter vital to transparency in public affairs.  On the other hand, the Office of the Special Rapporteur applauds the few positive steps that have been taken in this arena, such as the abolition of contempt laws in one member State of the hemisphere and the adoption of laws recognizing the right of access to information and/or writs of habeas data in three countries of the region.


Chapters III, IV and V present a theoretical framework for considering issues of relevance to the development and exercise of freedom of expression in the hemisphere.

With a view to advancing the promotion of comparative law, Chapter III sets forth a summary of the inter-American system of jurisprudence alongside the domestic jurisprudence of member States.  In Section One, the chapter describes the jurisprudence of the IACHR and the Court regarding freedom of expression, tracing its conceptual evolution in terms of the significance ascribed to it by the Inter-American system.  The Report points out that “The Court and the Commission have both increasingly stressed the importance of freedom of expression in a democratic society and the particular emphasis that this right deserves within the inter-American system (...).”  Some of the cases that have emerged in this connection have been settled on the basis of provisions under Article 13 of the American Convention on Human Rights.  Section Two of the chapter lays out holdings of local courts that can serve as “tools of great usefulness to other magistrates seeking precedents to guide them in their resolution of similar suits.”  This Report reviews case law from Argentina, Costa Rica, Colombia, Panama and Paraguay.


Chapter IV lays out preliminary considerations of the issues raised by the subject “Freedom of Expression and Poverty.”   Under this rubric—research into which began in 2001—the Rapporteur exhorts “the States to formulate public policies that aim to reduce the incidence of exclusionary practices and to guarantee the exercise of the right to freedom of expression without any sort of discrimination”.   The chapter also underscores the importance of establishing mechanisms to ensure access by the poor to sources of public information as part of their right to freedom of expression.  Finally, a very broad outline is offered regarding the exercise of freedom of expression and the use of community communications media as a means of rendering that right and the right of assembly in public spaces viable as a practical matter.  According to the Rapporteur, “it is in principle inadmissible that demonstrations in a public forum be criminalized per se when they are held pursuant to the right to freedom of thought and expression and the right of assembly.  In other words: we must analyze whether the use of criminal sanctions can be justified under the Inter-American Court’s standard establishing the requirement to prove that such a restriction (i.e., deeming the action criminal) satisfies a compelling public interest necessary for a democratic society to function.”


In Chapter V, which deals with “Laws of Contempt and Criminal Defamation,” the Special Rapporteur reiterates the need to revoke the offense of "desacato", or contempt, and expresses regret that so few significant achievements in this regard have been registered in the member States since the Office last reported on the subject in 1998 and 2000.  The Rapporteur believes that “it is important to provide follow-up on the progress made in implementing recommendations issued in previous Reports, particularly as to the need to derogate from such laws in order to adapt domestic legislation to the standards enshrined in the inter-American system governing respect for the exercise of freedom of expression.”  In conclusion, Bertoni expresses his concern about so-called offenses “against honor,” which include libel and slander and are wielded with the same intent as the charge of criminal contempt.  The Rapporteur notes: “In order to ensure an adequate defense of freedom of expression, the Status must amend their laws on defamation, libel and slander in such a manner as to guarantee that only civil sanctions will attach to charges of injury and insult to the reputation of government employees. (...) Pursuant to the doctrine of organs of the inter-American system established for the protection of human rights, it is essential that expressions of criticism leveled against civil servants, public figures, or generally involving matters of public interest be decriminalized (...) given the chilling effect and likelihood of paralyzing self-censorship that the very existence of such legislation produces.


In his concluding remarks, Bertoni recognizes that freedom of expression in the Americas remains restricted in many countries in various ways.  “Democracy demands a sweeping freedom of expression, which cannot take root under the shadow of State mechanisms still in place to curb its unfettered exercise.   While many of the old practices have disappeared today, more subtle and sophisticated means have emerged to undercut the freedom of the media.”   In order to improve the hemisphere’s ability to strengthen the exercise of freedom of expression within its borders, the Special Rapporteur recommends that assassinations, kidnappings, threats and intimidation against social communicators be investigated; that the laws of criminal contempt, defamation, libel and slander be revoked; and that legislation be promulgated facilitating access to information.


Finally, the Office strongly condemns all acts of intimidation seeking to generate generalized fear that will suppress or chill the free flow of expression.  At the same time, it congratulates all those—journalists, social spokesmen, and defenders of human rights, among others—who have demonstrated courage and determination in their struggle not to be muzzled in the exercise of this most fundamental right, essential to a life of dignity in democracy.



Office of the Special Rapporteur for Freedom of Expression

April 2, 2003 

Washington, D.C.