Freedom of Expression
1 - Introduction
1. The Office of the Special Rapporteur for Freedom of Expression is an office established as part of the Inter-American Commission on Human Rights in 1997, although the first Special Rapporteur, Santiago Canton, was appointed the following year. The first change in Rapporteurs occurred in 2002, when the Second Special Rapporteur took office in May. The significance of these dates is that, although this is a relatively new office, it became a benchmark for the protection of freedom of expression in the hemisphere under the leadership of the first Rapporteur.
2. The four reports issued by the Office of the Rapporteur since its creation, the organization of a good team of co-workers, the assistance in IACHR activities in the area of freedom of expression, the constant inquiries and communications received by the Rapporteur from various sectors of society and some States, and the emphasis on including several topics on the agenda to strengthen this right are only a few visible examples of the hard work carried out prior to the time that the new Rapporteur took office.
3. The institutional history built by the Office of the Special Rapporteur in some ways facilitates the continuation of the work, unlike the time when the Office was created in 1998. This Office is now known throughout the hemisphere as the entity in the Organization of American States in charge of promoting and monitoring the observance of the right to freedom of expression. As a result, the expectations regarding the Office of the Special Rapporteur have grown significantly.
4. This increase in expectations gives rise to a new challenge: reinforcing the Office to meet a large part of them. The Office of the Rapporteur was established as a financially independent unit; hence, most of its work is financed with voluntary contributions or donations. Since the beginning of his administration, the Special Rapporteur has spoken with various governments to emphasize the fact that along with the institutional and political support given to the Office since its inception, financial support needs to be a priority, because it is essential to operate and carry out the activities required under its mandate.
5. In this Report, the Rapporteurship would like to thank the States that make voluntary contributions to the office. Among them, contributing for the first time, are Brazil, Mexico and Peru. They have joined the list of previous donors, the United States and Argentina. The Rapporteurship would also like to thank the Swedish International Development Cooperation Agency (SIDA) for its support and confidence in our performance as well as for its interest in the activities of the Office of the Special Rapporteur, as is reflected by the new financial cooperation agreement both institutions signed this year.
6. Even though there are many projects under way that will enable the Office to increase its activities in the future, the Rapporteur would like to urge the other States in the region to follow the lead taken by the above-mentioned States, in compliance with the commitments made at hemispheric summits. It is important to emphasize that the Plan of Action approved by Heads of State and Government at the Third Summit held in Quebec in April 2001, states that in order to strengthen democracy, create prosperity, and develop human potential, the States “will support the work of the Inter-American Human Rights System in the area of freedom of expression, through the IACHR’s Special Rapporteur for Freedom of Expression.”
7. Freedom of expression is one of the most highly valued rights in a democracy. While it is true that there are differences of opinion as to its definition and content, the need for this right to be enforced is widely acknowledged. Some hold that freedom of expression and democracy are not connected in an instrumental way, or in other words, that the former is not an instrument of the latter, but rather that human dignity, protected by freedom of expression, is a key component of a true democracy.
8. Much of the disagreement on the content of freedom of expression actually has to do with divergent views about the content of democracy. Democracy is usually defined as government by the people, as opposed to government by certain families, classes, castes, or tyrants in general. However, the concept of “government by the people” can be interpreted, at least, in two very different ways.
9. On one hand, according to a first school of thought, “government by the people” means government by the majority of the people, what is known as the “majoritarian” concept of democracy. There are, in turn, different versions of this majoritarian concept: the populist version, in which the government formulates policies that are approved by a large number of individuals at a given time; and a more sophisticated version, according to which approval by a large number of people does not matter unless there is appropriate information on public affairs and an adequate debate thereon.
10. On the other hand, the concept of democracy can be viewed from another perspective: a “partnership” by which “government by the people” means government by all the people, acting together as partners in a collective self-government enterprise. This idea is more abstract than the ”majoritarian” concept, but its advantage lies in that it sets the foundations for the theory that all individuals must play an equal role in building this collective enterprise. According to this version, equality among citizens means that there shall not exist particular groups at a disadvantage in their efforts to gain attention or express their views.
11. Unfortunately, in this hemisphere not everybody has the opportunity to participate in this collective enterprise. High poverty rates in most of the region make it impossible for those whose basic needs are unmet to participate in this joint enterprise. “It is believably said that if a man is so poor that he cannot afford something for which there is no legal impediment, such as a loaf of bread, a trip around the world, or a hearing in court, then that man has no more freedom to obtain it than he would if the law were to prevent it.”[1]
12. However, one could wrongly assume that the urgent, poverty-generating economic needs prevalent in many regions of the hemisphere should first be met, before working to expand political freedoms, or, as in the case in point, to strengthen and consolidate freedom of expression. Amartya Zen gives at least three arguments explaining the flaws of this line of reasoning.[2] The Nobel Prize winner in Economics holds that the supremacy of basic freedoms responds to: a) its direct importance to human life associated with basic capacities, such as social and political participation; b) its instrumental role in enabling individuals to express their claims and call political attention to them, including their economic needs; and c) its constructive role in conceptualizing what “needs” actually means, including the meaning of economic needs in a specific social context.
13. For this reason, this Report deals with the topic of “Freedom of Expression and Poverty.” The research for this report began in 2001, due to the significance that the Rapporteurship gives to the participation of all the groups of society without any kind of discrimination for a better operation of democracy. It is an initial attempt to analyze the right to freedom of expression among sectors of the Latin American population whose basic needs are not met. It is also an appeal to find ways to strengthen and provide for channels of expression for these neglected sectors, as an instrument for development. Freedom of expression can also be a tool to this end. In the report entitled “Building Institutions for Markets,” published by the World Bank in 2002, it is stated that the mass media, as the optimum channels for exercising this right, can have an important role in economic development by influencing both the incentives of participants in the market and the demand for change.[3]
14. This chapter of the report sets forth considerations for the need to guarantee the exercise of this right without any kind of discrimination. It also discusses the importance of devising mechanisms to ensure access to public information by the poor, as part of their freedom of expression. The Office of the Special Rapporteur has given special attention to this last topic, access to public information, and it will continue to do so.
15. It is important to stress that when public information is systematically kept secret, either because of legislation that provides for it or because of the practices established in a society, the effects, in the view of Joseph Stiglitz, are not only adverse from a political standpoint, but from an economic standpoint as well.[4] The reason is that many decisions made in the political arena have economic effects, especially as distribution policies are concerned. As a result, information works to ensure a better allocation of the resources existing in a society. Moreover, society as a whole pays for the contents of public information. Expropriation by public officials of this information is, in the eyes of Stiglitz, tantamount to the theft of any other public good.
16. Finally, the chapter on “Freedom of Expression and Poverty” takes up in general terms the exercise of freedom of expression and the right of assembly in public spaces, and the use of community means of communication to exercise these rights.
17. Unfortunately, in the Americas, other practices designed to restrict free expression still exist. Journalists, human rights defenders, and people in general who make use of this right are accused in criminal courts of committing crimes of desacato (disrespect) or defamation when they express themselves critically regarding matters of public interest. This is not conducive to the creation of an atmosphere where freedom of expression can fully develop. Fear of punitive measures creates fear of expressing oneself freely. The Office of the Special Rapporteur and the Inter-American Commission on Human Rights have repeatedly referred to the harmful “chilling effect” these laws produce. It is important to highlight that there is factual research in support of these arguments. In a paper published a few years ago, it was concluded that the impact of defamation laws clearly shows that this fear exists and that it significantly limits what the public can read or hear.[5]
18. For this reason, the topic of desacato laws and criminal defamation is addressed in Chapter V. The chapter begins with the intention of the Office of the Special Rapporteur to renew the arguments and evaluate the progress achieved in the hemisphere with respect to this issue every two years. In 1998 and in 2000, the Rapporteur’s reports referred to the crime of desacato, but now there is increasing attention on the problem of the crimes of slander and defamation when used in the same way as desacato. In this report, reference will again be made to the need to abolish the crime of desacato, with new observations by the international community, and a section will be added on the possibility of partially decriminalizing crimes against honor when referring to matters of public interest. Finally, reference is made to the lack of significant progress on this issue in the region since the publication of the report in 2000.
19. During the Third Summit of the Americas held in Quebec, Canada, in April 2001, the Heads of State and Government ratified the mandate of the Special Rapporteur, adding that the states “will support the work of the Inter-American System of Human Rights in the area of freedom of expression, through the Special Rapporteur for Freedom of Expression of the IACHR, will proceed to disseminate comparative case law studies, and will further endeavor to ensure that national laws on freedom of expression are consistent with international legal obligations.” In compliance with this mandate, the Office has helped further comparative case law studies since it began operating.
20. Following these initiatives, Chapter III of this Annual Report is new, and is expected to continue in future reports as a permanent chapter. It is divided into two parts. The first part deals with the system’s jurisprudence. In the present report, all the jurisprudence of the inter-American system in the area of freedom of expression is presented by topic. The second section of this chapter refers to States' domestic jurisprudence. It contains decisions of local courts that essentially uphold the standards of freedom of expression. As stated in the introduction to this chapter, I believe that this can be a useful tool for other judges in issuing similar decisions and supporting them using comparative case law from Latin America, which is not always easily available.
21. The rest of the chapters in this report follow the structure of the previous ones. It should be noted that Chapter II, “Evaluation of the Status of Freedom of Expression in the Hemisphere,” expresses the opinion of the Rapporteur, based on information received from various sources throughout the entire year.
22. Finally, as evidenced in this report, free expression continues to prove dangerous in many parts of the hemisphere. Murders of journalists continue to be a serious problem in the area of freedom of expression and information in the Americas. The murder of journalists represents not only a violation of the fundamental right to life, but it also exposes other social communicators and members of the media to extreme risks and vulnerability. Unfortunately, many of these crimes remain unpunished.
23. Regrettably, human rights defenders are now victims of the same treatment as the group that has traditionally been the one most under attack, namely, journalists and communications workers. These defenders are also subject to attacks because they both report fundamental violations and indicate their perpetrators.
24. The Rapporteurship vehemently condemns all such acts of intimidation intended to create widespread fear that suppresses or restricts free expression. And at the same time, it congratulates all the journalists, social communicators, and human rights defenders, among others, who have demonstrated their courage and their determination not to be oppressed by those who want to silence them by continuing to exercise this fundamental right, which is essential for a life of dignity and in democracy.
[1] Isaiah Berlin, “Four Essays on Freedom,” Alianza Editorial, Madrid, 1998, p. 221.
[2]See “Development as Freedom,” Anchor Books, New York, 1999, p. 148.
[3] In addition, the role that the World Bank gives the media to play in relation to poor sectors of society is critical. For instance, the report indicates that in view of the reach of the mass media, its role in Latin America has been important as an adjunct to public education or as a way of lowering prices of products. The report gives examples of original radio programs in Braziland in Nicaragua.
[4]See: “The Right to Tell: The Role of the Mass Media in Economic Development,” World Bank Institute Development Studies, Washington DC, 2002, p. 35.
[5]This study explored the impact of defamation or libel laws on the media. It was carried out on the basis of interviews with attorneys of the media, journalists, publishers, etc. The authors analyzed the status of defamation laws, and gave statistical data on the situation in Englandand Scotland. See “Libel and the Media: The Chilling Effect,” Oxford UniversityPress, 1997.