Freedom of Expression
Press Release 91/03
UPON CONCLUDING HIS OFFICIAL VISIT TO HONDURAS, THE SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESSION URGES THE GOVERNMENT TO ABOLISH THE REQUIRED ASSOCIATION OF JOURNALISTS AND THE CRIME OF DESACATO
Upon concluding his first official visit to Honduras, the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR), Eduardo A. Bertoni, urged the Honduran government to abolish its laws requiring journalists to be licensed members of an association, and the laws penalizing offensive expressions directed at public officials, generally known as “ desacato laws.”
The Special Rapporteur for Freedom of Expression visited this Central American country September 2 to 5, at the invitation of the Government of President Ricardo Maduro, for the purpose of gathering information on the status of freedom of expression and of promoting the standards set by the inter-American system for the protection of human rights in this area. Lisa Yagel, a specialist in the Office of Rapporteur, accompanied the Rapporteur.
The Special Rapporteur is grateful to the Honduran authorities for enabling him to carry out his work with complete independence and autonomy. He would also like to express his appreciation to the Office of the General Secretariat of the OAS in Honduras for its assistance. Finally, the Rapporteur thanks Honduran civil society and journalists for the information they provided.
During his visit, various sectors told the Special Rapporteur of their concerns regarding both the increase in criminal court cases on charges of desacato or defamation, which could be in retaliation for critical commentary, and the placement of official advertising, which could trigger self-censorship by the communication media, if the distribution of such advertising is not regulated on the basis of clear criteria. The Rapporteur also received reports on relatively unethical practices by some journalists.
The Rapporteur recognizes the efforts of the government to initiate a dialogue in national and regional spheres to discuss subjects and activities related to the full exercise of freedom of expression in Honduras, among other things. At the same time, the Rapporteur was pleased to hear government sectors voice their intention to promote laws that guarantee access to public information and habeas data.
The Special Rapporteur for Freedom of Expression is a permanent office, operating independently with its own budget within the legal framework of the IACHR, which established it in accordance with its powers and authority.
The objectives of the Office of the Special Rapporteur include the following: heightening an awareness of the need to ensure full respect for freedom of expression in the hemisphere, in view of the key role it plays in consolidating and developing democracy and in protecting and reporting violations of other human rights; and, formulating specific recommendations to OAS member States on matters related to freedom of expression, so that they will gradually adopt measures to guarantee its full exercise.
The visit to Honduras was made in pursuit of these objectives. While there, the Rapporteur met with government Secretaries and Undersecretaries, deputies to the National Congress, the Attorney General of the Republic, and the President of the Supreme Court of Justice.
He also held meetings with the Executive Secretary of the National Convergence Forum (FONAC), the National Commissioner for Human Rights, officials of the National Telecommunications Commission (CONATEL), and officials from the Honduran Association of Journalists [Colegio de Periodistas de Honduras].
The Special Rapporteur also received information and testimony from journalists, human rights defenders, and representatives and directors of the mass media. In addition, he interviewed nongovenrmental human rights organizations and other representatives of civil society.
To promote respect for freedom of expression, the Rapporteur organized a seminar on September 3 on “Protection of freedom of expression and the press in the inter-American system for the protection of human rights.”
The Special Rapporteur will report to the IACHR plenary on his visit during its next regular session in October. The information gathered will be carefully studied, with a view to its inclusion in the annual report that will be submitted to the Inter-American Commission for its consideration in due time.
Nonetheless, in keeping with the practice followed by other IACHR rapporteurs upon completion of their visits, and with a view to helping ensure greater protection of freedom of expression in Honduras, the Special Rapporteur would like to put out some preliminary observations and considerations. The purpose of these observations is to help the Honduran government to gradually adopt measures to bring its internal laws and practices into line with the terms of Article 13 of the American Convention on Human Rights in the area of freedom of expression, as interpreted in the Declaration of Principles on Freedom of Expression that the IACHR adopted in 2000. The Declaration is an important document in interpreting Article 13 of the American Convention on Human Rights. Its adoption is not only an indication of the significance attached to protecting freedom of expression in the Americas, but it also incorporates into the inter-American system international standards for a more effective defense of the exercise of this right.
Preliminary observations
The right to freedom of expression entails the right of all persons to seek, receive, and disseminate information and ideas of all kinds, which is a fundamental requirement for the development and strengthening of democratic societies. Freedom of expression strengthens the other basic freedoms of citizens, by facilitating their participation in decision-making processes, by serving as a tool for achieving a more tolerant and stable society, and by contributing to the dignity of human beings, through the exchange of ideas, opinions, and information.
Freedom of expression allows the conflicts inherent in all societies to be debated and resolved without destroying the social fabric, while maintaining a balance between stability and change, a key element in the development of democracy. In addition to helping protect the other basic rights, freedom of expression plays a key role in monitoring or controlling government management, since it makes it possible to expose abuses of power, as well as violations of the law committed to the detriment of the citizenry.
When freedom of expression is restricted or limited, democracy loses its social, collective, permanent dimensions, and becomes merely a formal institutional arrangement, in which there is no effective participation of society. It is essential to strengthen freedom of expression in order to strengthen democracy.
It is therefore encouraging that a wider debate on obstacles to the full exercise of this freedom is developing in various forums and spheres in Honduras. The Rapporteur will continue to observe these debates, and urges that they be further developed and pursued out with the greatest possible participation.
The interest on the part of various sectors in promoting access to information is also a good sign. The right of access to information is one way to strengthen democracies and monitor government management, and is essential for citizen participation in the political process. States must develop clear and accessible rules to help guarantee this right. Consequently, the Rapporteur urges Honduran society to make sure that their interest in the subject is reflected in initiatives to guarantee the right of access to information through laws that ensure its prompt and effective exercise.
Despite the positive steps taken in initiating a debate on these issues, the Rapporteur noted the existence of certain legislation and practices that are not contributing to the full exercise of freedom of expression and access to information in Honduras.
The Special Rapporteur noted with concern that despite the recent legislative reform reported to him, Honduran laws continue to contain provisions requiring journalists to be licensed members of an association in order to practice journalism. It is opportune to point out that in 1985, the Inter-American Court of Human Rights clearly determined in Advisory Opinion OC-5/85 that the compulsory association of journalists violated freedom of expression, as guaranteed in Article 13 of the American Convention on Human Rights.
As the Court said on that occasion, journalism is the primary and principal manifestation of freedom of expression, and for that reason it cannot be viewed as the mere rendering of a service to the public by applying a certain knowledge or the training acquired at a university, or by those who are members of a professional association, as in the case of other professions. Journalists are persons who have decided to exercise freedom of expression in a continuous, stable, and remunerative way. Compulsory membership in an association would permanently limit the right to make full use of the powers stipulated in Article 13 of the American Convention for all human beings, to the detriment of those who are not members of said association. Therefore, the Special Rapporteur urges the Honduran government to repeal any legal provision that could be used to make compulsory the association or licensing of journalists, so as to guarantee full exercise of freedom of expression for all members of Honduran society.
Moreover, the threat of criminal sanctions as a result of views or information expressed, and especially of criticism of public officials, or public or private individuals voluntarily involved in matters of public interest, could create a paralyzing effect on those persons who wish to express their ideas, and could lead to self-censorship.
The Honduran Criminal Code still includes the crime of desacato in various articles, and provides for punishment by imprisonment for offenses to public officials. In its annual reports, the Office of Rapporteur has clearly stated its concern over the inclusion of this crime in Honduran legislation.
In 1995, the IACHR stated that laws that penalize offensive statements directed to public officials, generally known as “desacato laws,” violate the full exercise of freedom of expression guaranteed by the American Convention, since they inhibit criticism by instilling fear of judicial action, and they lend themselves to abuse, as a way of silencing criticism. At the same time, desacato laws confer a greater level of protection on public officials than on private persons, which is counter to the democratic principle whereby the government should be subject to greater controls, such as public scrutiny, as a way of preventing and controlling abuses of its coercive powers.
The Rapporteur expresses his concern over information received to the effect that the court system is being used to harass journalists who investigate cases of corruption or drug trafficking, by invoking both the aforementioned desacato laws and laws on defamation. Principle 10 of the Declaration of Principles on Freedom of Expression states that privacy laws should not inhibit or restrict the investigation and dissemination of information of public interest. The protection of a person’s reputation should be guaranteed only through civil sanctions in those cases in which the person offended is a public official, or a public or private person who has voluntarily become involved in matters of public interest.
The Rapporteur is of the opinion that in order to ensure freedom of expression, the Honduran laws on defamation need to be revised, in light of Article 13 of the American Convention on Human Rights, the decision and reports of the Inter-American Commission and Court, and the Declaration of Principles on Freedom of Expression. Moreover, the Rapporteur once again urges the Honduran government to repeal the crime of desacato, which is harmful to the exercise of freedom of expression and to the democratic process.
The media, for its part, should enjoy the right to work independently, as established in Principle 13 of the Declaration of Principles on Freedom of Expression, which states that indirect pressures exerted upon social communicators, such as the arbitrary and discriminatory placement of official advertising with the intent to put pressure on and punish or reward social communicators because of the opinions they express, are contrary to freedom of expression.
During the visit, and contrary to this Principle, the Rapporteur was informed that official advertising is being placed in a discretionary manner, without clear parameters and with certain signs of arbitrariness. The Rapporteur will continue observing the situation on which these reports are based, and urges Honduran public institutions to guarantee that official advertising is distributed in accordance with fair, clear, and objective criteria.
With regard to ownership of the communication media, the Rapporteur noted that many persons active in political circles are acquiring communication media. This subject was broached in November 2001, in a joint statement by the three international rapporteurs for freedom of expression: the United Nations Special Rapporteur on Freedom of Opinion and Expression; the Representative of the Organization for European Security and Cooperation (OESC) on Freedom of the Media; and the OAS Special Rapporteur for Freedom of Expression. The Rapporteur considers it opportune to refer to the opinion expressed in that declaration to the effect that persons who hold elective and government offices, and are owners of communication media, should separate their political activities from their interests in those media. Moreover, the Office of the Special Rapporteur also points out that Principle 12 of the Declaration of Principles on Freedom of Expression notes that assignments of radio and television broadcast frequencies should consider democratic criteria that guarantee equal opportunities of access for all individuals.
The Special Rapporteur noted during his visit that certain sectors of societies were concerned over what they referred to as relatively unethical practices of communicators or the abusive exercise of freedom of expression. The Office of Rapporteur received information on the use of some communication media as instruments to defend personal, economic interests, or to tarnish the reputation of persons, to the detriment of the right of the Honduran public to receive information.
In view of the seriousness of these accusations, the Rapporteur would remind journalists and owners of Honduran communication media that they must bear in mind both the need to maintain their credibility with the public, which is essential for their survival, and the important role played by the press in a democratic society, since it is the principal way in which members of society exercise their right to express and receive information and ideas. The press should encourage ethical self-regulation, through codes of ethics, style manuals, editing bylaws, public defenders, information councils, and other possible mechanisms. It should be clear, however, that it is not the responsibility of the State to impose the rules of ethical conduct, which are essential to the work of social communicators. Finally, the Rapporteur believes it is appropriate to refer to what was said by the three rapporteurs for freedom of expression in their joint declaration in December 2002, when they reminded owners of the press of their responsibility to respect freedom of expression, and especially editorial independence.
The Rapporteur for Freedom of Expression will continue to closely observe the situation of freedom of expression in Honduras, and once again offers his cooperation in the debate and in any initiatives developed to guarantee and promote the full exercise of freedom of expression in the country.
The Special Rapporteur for Freedom of Expression would once again like to thank the Honduran government and nongovernmental organizations and civil society institutions for the cooperation and the facilities they provided, in preparation for and in carrying out this visit. In addition, the Special Rapporteur reiterates his desire to continue cooperating with the authorities and civil society, within the framework of applicable instruments, to help strengthen internal and international mechanisms for the protection of freedom of expression.
Office of the Special Rapporteur for Freedom
of Expression
Tegucigalpa, Honduras. September 5, 2003 .