Freedom of Expression

B. Evaluation

            5.          In 2003, the exercise of freedom of thought and expression in the hemisphere continued to experience the same kind of problems that have been mentioned by the Rapporteurship in recent years.


            6.          Based on the information presented in this report, once again there have been assassinations of journalists because of their work.  In this regard, the Rapporteurship recalls that the Declaration of Principles on Freedom of Expression, prepared by the Special Rapporteurship on Freedom of Expression and adopted by the Inter-American Commission on Human Rights, [i] is very clear in this regard in Principle 9: assassinations of journalists violate the rights of persons and severely restrict freedom of expression.  On three occasions the Rapporteurship noted its concern over this situation through press releases, particularly concerning cases in Colombia and Brazil.  A total of seven assassinations are recounted here, though it should be noted that there were other cases of deaths of journalists in which the relationship to their activity was not sufficiently clarified so as to be able to consider them attacks on freedom of expression, without prejudice to the fact that any assassination is worthy of condemnation.


            7.          Physical attacks and threats also continue to limit the full exercise of freedom of expression.  The above-mentioned Principle 9 also decries such situations as restrictive of this fundamental right.  While in many countries one can find wide-ranging debate and criticism of government policies in the media, such legitimate activity results in attacks and threats that are unacceptable in a democratic society.  Vigorous debate and criticism of government action through the press is found in several countries of the hemisphere, but in Venezuela, Haiti, and Guatemala one finds attacks on critical journalists and media that appear to be motivated by such positions.


            8.          This year there were social demonstrations, in public places, in several countries of the Hemisphere.  Many of them ended in acts of violence, in which the victims included journalists, cameramen, and employees of media who were covering these events.  Such situations were found in Venezuela, Guatemala, Peru, Argentina, and Bolivia.


            9.          Although such attacks may not directly involve state agents, the Rapporteurship notes that it is an obligation under the American Convention not only to respect human rights, but also to ensure their exercise.  Accordingly, as the Declaration of Principles states at Principle 9, “It is the duty of the state to prevent and investigate such occurrences, to punish their perpetrators and to ensure that victims receive due compensation.”  The Rapporteurship once again calls on the States to prevent and investigate such acts, and to marshal all appropriate resources needed to carry out this duty, so as to unquestionably assert their will to ensure the free exercise of the freedom of expression.  Impunity for such acts should be eradicated from the Hemisphere.


            10.       In addition, judicial actions continued to be brought in the Hemisphere that may have a chilling effect on the exercise of freedom of expression.  Criminal proceedings against those who criticize matters of public interest, whether based on desacato statutes or other offenses, such as slander, libel, or criminal defamation, persist in the Hemisphere, as reflected in the cases mentioned in Panama, Mexico, Argentina, Brazil, Chile, Costa Rica, Ecuador, Honduras, Jamaica, Paraguay, the Dominican Republic, and Venezuela.


            11.       These criminal proceedings are possible because many member States continue to have desacato statutes on the books.  In 2003, only Peru adapted its legislation to Principle 11 of the Declaration of Principles.  In the case of Chile, even though the Rapporteurship had found in December 2002 that legislation had been introduced to repeal the desacato provisions in its Criminal Code and Code of Military Justice, the debate in Congress was postponed repeatedly.  It should be noted that in Honduras , the Attorney General brought a constitutional motion challenging the desacato statute. In contrast, in Venezuela, the Supreme Court upheld the desacato statute, thus contradicting the recommendations of the IACHR, which was a matter of concern to the Rapporteurship, as was noted in a press release.  Those member States that have yet to do so need to amend their criminal laws to bring them into line with the recommendations emanating from the Declaration of Principles on Freedom of Expression.


            12.       Principle 8 of the Declaration clearly establishes: “Every social communicator has the right to keep his/her sources of information, notes, personal and professional archives confidential.”  As appears from the information collected by the Rapporteurship, in the United States, Mexico, Honduras, Guatemala, and Peru, actions by the authorities were found that were at odds with this principle.  Even though one cannot speak of a widespread practice, the Rapporteurship calls for the fullest respect for this principle.


            13.       Access to public information, which in 2003 was described by the General Assembly in resolution AG/RES. 1932 (XXXIII-O/03) as an important element for strengthening democracy, continued to be on the agenda of many member States.  Nonetheless, there have been few legislative reforms on this matter.  Mexico saw auspicious progress on this front, with the entry into force of a federal law, and with at least the introduction of bills in every state of Mexico.  Peru also made progress in the process of implementing laws to provide for access to public information, as did Jamaica and Nicaragua.


            14.       Nonetheless, 2003 was marked by a stagnation of the legislative processes in Guatemala and Argentina, as bills that had been introduced in their legislatures did not become law. In addition, the case-law has been restrictive of access to public information, as found by the Rapporteurship.   In Panama, Chile, and the United States, various judges have restrictively interpreted the possibility of gaining access to public information, which is at odds with Principle 4 of the Declaration of Principles.


            15.       As indicated in the 2002 Annual Report, this year the Rapporteurship continued to note with concern the possibility that the media might not always act responsibly or ethically.  It should be reiterated, however, that the media are mainly accountable to the public and not to the government.  It is their essential function in a democracy to inform the public, among other things, of the measures adopted by the government.


            16.       Self-regulation of the media is a challenge that needs to be addressed given that the threat of legal sanctions for making journalistic decisions based essentially on subjective criteria or professional judgment would also have a chilling effect on the media, hindering the dissemination of information in the legitimate public interest.  Journalists and media owners should be mindful of both the need to maintain credibility in the public eye—which is essential if they are to endure—and the essential role of the press in a democratic society.  In the Plan of Action adopted at the Third Summit of the Americas held in April 2001 in Quebec City, Canada, the Heads of State and Government indicated that the Governments will foster self-regulation of the media.


            17.       Principle 12 of the Declaration of Principles expressly indicates that monopolies or oligopolies in media ownership and control must be subject to anti-trust laws, as it is undemocratic to restrict the plurality and diversity that ensure the full exercise of citizens’ right to information.   The concentration of media ownership impedes the plural and diverse expression of the various sectors of society.  It is a practice which, based on the reports the Rapporteurship has received, appears to be on the rise in the Hemisphere.  In response, the Rapporteurship insists on compliance with the principle mentioned.


            18.       Finally, and as has been indicated in previous reports, the Rapporteurship continues to consider that the member States need to have a greater political will to carry out reforms in their legislation guaranteeing every society the full exercise of freedom of expression and information.  Democracy requires broad freedom of expression, yet it cannot be furthered if mechanisms that impede full respect for freedom of expression remain in place in the States.  The Rapporteurship reiterates the need for the States to make a stronger commitment to respect this right so as to attain the consolidation of the democracies in the Hemisphere.


[i] The idea of preparing a Declaration of Principles on Freedom of Expression stemmed from recognition of the need to provide a legal framework to regulate the effective protection of freedom of expression in the hemisphere, incorporating the main doctrines recognized in various international instruments. The Inter-American Commission on Human Rights approved the Declaration prepared by the Rapporteurship during its 108th regular session in October 2000. That declaration is fundamental for interpreting Article 13 of the American Convention on Human Rights. Its approval is not only a recognition of the importance of protecting freedom of expression in the Americas, but also incorporates international standards for the more effective defense of the exercise of this right into the inter-American system.  (See <>.