Freedom of Expression
Press release R78/20
IACHR and its SR FOE express concern about restrictions on freedom of expression and access to information in States’ response to the COVID-19 pandemic
April 18, 2020
Washington, D.C. - The Inter-American Commission on Human Rights (IACHR) and its Office of the Special Rapporteur for Freedom of Expression (SR FOE), within the framework of its Coordination Unit for the Rapid and Integrated Response to the COVID-19 pandemic (SACROI COVID-19, for its Spanish acronym), express their concern regarding the violations of freedom of expression and the restrictions on access to information as a result of the measures established by the States of the region in the framework of the response to the pandemic. The IACHR and the Office of the Special Rapporteur urge the States to guarantee the exercise of the right to freedom of expression and access to information, and make an active call to guarantee the significant role that press plays in the context of a pandemic, in accordance with Resolution 1/20 on Pandemic and Human Rights issued by the Inter-American Commission.
The IACHR and its Office of the Special Rapporteur have identified restrictions on the access of journalists to press conferences and the possibility of asking questions about the pandemic; some States have also resorted to criminal law offenses to sanction the dissemination of ideas and information classified as false and the incitement to panic regarding public health. Furthermore, with the legitimate interest of stopping the spread of the pandemic, some States have resorted to digital cyber patrols measures, which could affect fundamental freedoms.
According to the information received, at the beginning of the pandemic, several States, such as Argentina, Brazil, Colombia, the United States, El Salvador, Honduras, and Mexico, would have suspended or extended the time limits for processing administrative procedures in general and/or related to requests for public information. In the case of Nicaragua, the situation reported on the provision of information related to the pandemic is more serious, due to the lack of clear and disaggregated information on the people subjected to the test, the individuals infected, and those who have seen their health condition deteriorate.
In Colombia, Article 5 of Legislative Decree 491, adopted on March 28th, extended the time periods to respond petitions, set forth in Article 14 of Law 1437 of 2011, that were already in progress or filed during the Health Emergency. The decree extended the time period to respond general requests from 15 to 30 days, documents and information requests from 10 to 20 days, and inquiries presented to authorities regarding matters under their subject expertise from 30 to 35 days.
The IACHR and its Office of the Special Rapporteur also acknowledge and welcome that in several States, the internal control bodies have reversed some of the most restrictive initial measures on access to information. In the case of Brazil, a Provisional Measure was issued suspending the deadlines for responding to requests for access to information in cases not related to the health situation, but this measure was suspended by the Federal Supreme Court days later. In Argentina, although on March 19 the Federal Executive Power suspended the administrative deadlines in general, on April 14th the Agency for Access to Public Information exempted the suspension of deadlines for procedures for access to public information, and expressly cited Resolution 1/20 of the IACHR. The federal government reported that since the beginning of the state of emergency it has exempted communicators, media and telecommunication company workers from the isolation and movement restrictions decreed by the emergency.
In the United States, the FBI initially informed that it would not accept -nor respond to- electronic requests for access to information due to the Covid-19 crisis; however, more recently the agency published in its website that it will receive requests for information and respond to them with delays. Other agencies announced the extension of time limits in the delivery of information.
In Mexico, the National Institute for Transparency, Access to Information, and Data Protection (INAI) suspended the deadlines for meeting requests for information and protection of personal data until April 17- and then it was extended until April 30-, although the guaranteeing body continues to monitor the situation and established proactive transparency schemes. The federal government of Mexico reported that it is complying with its obligations to provide information about the pandemic and has created an open database on Covid-19.
For its part, the IACHR recognizes the public statement and other actions carried out by the Chilean Council for Transparency, which issued recommendations to regulated institutions,, such as, giving special priority to disaggregated information on the pandemic and adopting measures according to the IACHR Resolution 1/20.
Furthermore, it has been reported in several countries difficulties in the journalists’ access to official press conferences and in the possibility of them asking questions in person or virtually, without clearly establishing the criteria for selection of the media that can ask questions. This could undermine the role of press and the people's right to information about the pandemic, as well as government accountability. In the case of El Salvador, media and civil society organizations reported the impossibility of asking questions in official press conferences, and the lack of disaggregated information on the development of the pandemic. There is also concern about the dissemination of information without a scientific basis by high-level authorities in Venezuela, Cuba, Brazil, and Nicaragua, which could contribute to the dissemination of unreliable information and generate uncertainty in the population.
Access to information held by the State is a fundamental right of individuals and States are obligated to guarantee the exercise of this right. In this regard, the IACHR’s Resolution on Pandemic and Human Rights highlighted the importance of access to information in the current context due to Covid-19 and the crucial role that journalists play in the context of the public health emergency, by reporting on critical issues and monitoring government actions. States have the obligation to allow access to official press conferences to all media, without discrimination by editorial line, except for the necessary and proportional measures to protect health. Even questions asked in virtual spaces must be answered by the authorities with due diligence, since the press is the main channel for raising questions or queries with the authorities in the face of the emergency situation and isolation of the population.
Furthermore, public officials should not make, sponsor, encourage, or further disseminate statements which they know or reasonably should know to be false, which constitutes disinformation, or which demonstrate a reckless disregard for verifiable information. In contexts such as the current one, in which there is a public health crisis, official information shall have, within reason, a scientific basis.
In relation to requests for access to information, recommendation No. 33 of the IACHR’s Resolution establishes that States may give priority to those requests related to Covid-19 but should not establish general limitations with respect to other requests. In case of postponement of time limits, States must substantiate the refusal, establish a temporary space to fulfill the obligation and admit the appeal of the resolutions. In this sense, it is essential that governments firmly apply their access to information laws to guarantee that all people, especially journalists, have access to information.
The IACHR and its Office of the Special Rapporteur particularly recall that, in order to ensure active transparency, States must proactively provide truthful and reliable information on all aspects of public interest related to the pandemic, in open formats and in a manner accessible to everyone. Given the existence of the digital divide, States must find effective ways to fulfill the obligation of active transparency in such circumstances.
Furthermore, the IACHR and its Office of the Special Rapporteur observe with extreme concern the use of criminal law against journalists or persons who publish information related to the pandemic. According to publicly available information, journalists and doctors who published information about the spread of the virus and questioned the government's response to the crisis would have been detained in Venezuela. Journalist Darvinson Rojas was allegedly arrested and accused of instigating hatred and public instigation for publishing information about the contagions, and the doctor Julio Molino was allegedly accused of "incitement to hatred, worrying the community, and criminal association" after denouncing the situation of a hospital, for which he was convicted to house arrest.
In Cuba, several journalists have been fined under Decree Law 370, which regulates the " informatization of society in Cuba", after making statements on social networks and in the media regarding the pandemic and the State's response in this context. In some cases, their cell phones were also confiscated. The decree provides that the dissemination of information on the Internet "contrary to the social interest, morals, good customs and the integrity of persons" will be sanctioned
In Bolivia, meanwhile, Supreme Decree 4200 was issued, which established that "people who incite non-compliance with this Supreme Decree or misinform or generate uncertainty in the population will be subject to criminal charges for the commission of crimes against public health." In this line, the Ministry of Justice of Peru indicated that those who misinform the public with false news in order to obtain a benefit or disturb the public peace would be punished with imprisonment of up to 6 years, as stipulated in the Criminal Code. In Guatemala, the government announced the possibility of denouncing people for sedition if it was understood that they created panic through social networks, in accordance with the provisions of the Public Order Law and the presidential provisions in the event of a public calamity of April 12, 2020.
In Argentina, criminal cases for "public intimidation" have been initiated against at least five people who published information on their social networks that would be false. In addition, in Ecuador, a citizen was reportedly detained in the city of Esmeraldas, after posting on his Facebook images and comments about how medical personnel in his city cared for patients with coronavirus. The State reported that the aforementioned citizen was released and the prosecutor's office did not file charges.
Both in Colombia and Argentina "cyber patrols" are being carried out, which would aim to identify accounts that spread false information. In the case of Argentina, the National minister of Security stated that these tasks sought to detect "social humor"; in this regard, the Argentine government reported that the referred minister specified that the activity will be regulated by a protocol of action, which is built in line with inter-American standards and in consultation with civil society.
In this regard, in their joint statement on Covid-19, the rapporteurs for freedom of expression indicated that States should not create criminal offenses to sanction the dissemination of disinformation or false news, considering that the introduction of criminal offenses could bring the region back to a logic of criminalizing expressions on officials or matters of public interest and establish a tool with a strong inhibitory effect on the dissemination of ideas, criticism, and information. Likewise, the Resolution adopted by the IACHR emphasizes that in the event that subsequent liability is established for the dissemination of information or opinions, based on the protection of public health interests, this must be established by law, in proportion to the compelling interest that justifies it, and must be closely adjusted to the achievement of that legitimate objective.
Lastly, the IACHR and the Office of the Special Rapporteur have repeatedly warned about the use of vague and ambiguous criminal figures that do not meet the requirements of international law to criminalize journalistic work, the defense of human rights, and expressions of criticism through social networks. Likewise, the IACHR in its Declaration of Principles on Freedom of Expression established that prison penalties for sanctioning expressions on public officials or issues of public interest are contrary to the inter-American legal framework.
Furthermore, stigmatizing campaigns against journalists have been carried out in several countries. For example, the Brazilian president has repeatedly questioned the press, accusing them of causing hysteria regarding the Covid-19. For their part, journalists in Venezuela have been stigmatized and harassed, they have received threats and their houses have been painted with graffiti. In the United States, the president has questioned journalists during press conferences held in the framework of Covid-19.
Likewise, in Guatemala, a group of journalists has publicly denounced that they were disqualified by the president and other officials; as well as that virtual channels to direct questions about the response to Covid-19 have been restricted. The government reported that the president holds daily press conferences and instructed the Secretariat of Social Communication to provide graphic information to the population, including languages of the Maya, Garifuna and Xinca people. .
In this regard, the Resolution adopted by the IACHR establishes that public officials must observe special care in their speeches and statements regarding the evolution of the pandemic, and be aware that they are exposed to greater scrutiny and public criticism, even in special periods. Furthermore, the Commission recalls that public officials have a duty to ensure that their statements are not infringing on the rights of those who contribute to public deliberation through the expression and dissemination of their thoughts, such as journalists, the media, and organizations that defend human rights.
In the framework of the pandemic, the IACHR and the Office of the Special Rapporteur remind States that any suspension, restriction, or limitation imposed on human rights for the purpose of protecting health in the framework of the COVID-19 pandemic must comply with the principle of legality, be necessary in a democratic society and, therefore, be strictly proportional to meet the legitimate purpose of protecting public health.
The Office of the Special Rapporteur for Freedom of Expression was created by the Inter-American Commission on Human Rights (IACHR) with the aim of encouraging the defense of the right to freedom of thought and expression in the hemisphere, given its fundamental role in consolidating and developing the democratic system.
A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and defense of human rights in the region, and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.
R78/20