Freedom of Expression
1. INTRODUCTION
1. The Office of the Special Rapporteur on Freedom of Expression (hereinafter, “the Rapporteurship”) was created by the Inter-American Commission on Human Rights (IACHR) in October 1997, during its ninety-seventh regular session. Since then, the Rapporteurship has had backing, not only from the IACHR, but from states, civil society organizations in the Hemisphere, media, journalists, and above all, from the victims of violations of freedom of expression who see the Rapporteurship as offering important support to restore the guarantees needed in order to exercise their rights or to ensure fair settlement of their claims.
2. During 2004, the Office of the Special Rapporteur had a demanding agenda, carrying out more than a dozen journeys to promote freedom of expression and taking part in a similar number of conferences and seminars. Furthermore, in accordance with its mandate, the Rapporteurship assisted the Commission with some of the major petitions and difficult cases it processed. During 2004, the Rapporteurship also published and printed four publications and updated its website.[1] These achievements would not have been possible but for the dedication of office staff and the support of a number of talented interns.[2]
3. The present report maintains the basic structure of previous years and is in line with the terms of reference established by the IACHR for the work of the Rapporteurship. The report begins with a general introductory chapter. As usual, Chapter II evaluates the status of freedom of expression in the Hemisphere. The third chapter reviews comparative legislation, while the fourth chapter deals with access to information. Chapters V and VII are theoretical studies, requested by the IACHR, of specific issues relating to the interpretation of Article 13 of the American Convention on Human Rights. Finally, Chapter VI, contains the report that the Rapporteurship produces every two years on the situation in the Hemisphere relating to the laws of criminal defamation and contempt (desacato). This year, the report also covers the most recent cases before the Inter-American Court of Human Rights in this area.
4. Since its creation, the Rapporteurship has received information from many sources regarding situations that potentially affect the full exercise of freedom of expression, as well as progress made in guaranteeing the exercise of this right. Throughout 2004, the Office of the Special Rapporteur constantly received all kinds of information and evaluated it within the context of the Declaration of Principles on Freedom of Expression, approved by the Commission in the year 2000 as an authorized interpretation of Article 13 of the American Convention on Human Right and an important instrument to help states confront problems and protect the right to freedom of expression. Chapter II of the present report examines the situations reported to the office during 2004. Although the methodology used to produce this chapter remains essentially the same, the way it has been presented and organized has been altered in order to highlight how the reported situations relate to the principles in the Declaration.
5. Throughout its existence, the Rapporteurship has used the situations reported across the Hemisphere to highlight the challenges facing those wishing to exercise their freedom of expression: aggression against journalists, murders of journalists, the absence or inadequacy of laws to guarantee access to information, and the existence in many states in the region of laws of contempt. Again this year, these situations were repeated. But, as in its 2003 report, the Rapporteurship considers it important also to bring to our attention other threats to freedom of expression in the Americas, such as the concentration of ownership of the media in some parts of the Hemisphere, which directly affects diversity of ideas, and the financial pressures experienced by some media, which can indirectly violate their freedom to disseminate information and the public’s freedom to receive it. Furthermore, the situations created by a lack of professionalism by some social communicators become a problem when states are then tempted to use legal mechanisms to control the media. The Rapporteurship stresses how important it is for the media in general and social communicators in particular to accept the challenge entailed in operating a self-regulating activity that is essential for democracy.
6. Chapter III of the current report resumes the Rapporteurship’s practice of conducting comparative law studies, with backing from the Heads of State and Government at the Third Summit of the Americas, when they agreed to commit themselves to disseminate comparative jurisprudence.[3] The first part of the chapter summarizes jurisprudence of the United Nations Committee on Human Rights relating to freedom of expression, which contributes to the interpretation of this right within the inter-American system, and is also a useful tool for professionals and other interested parties. The second part of the chapter covers the judgments issued under States’ domestic laws during 2004, which either tacitly or explicitly incorporate international laws to protect freedom of expression. The publication of these cases might be useful in helping other judges to issue similar judgments with the backing of comparative jurisprudence from Member States.
7. Chapter IV complies with the mandate assigned to the Rapporteurship by OAS General Assembly resolution 1932 (XXXIII-0/03), repeated in 2004 in resolution AG/RES. 2057 (XXXIV-0/04), to continue reporting, in its annual report, on the state of public access to information in the region. This year, in the first part of the report, the Rapporteurship evaluates the relationship between access to information and economic development, and then goes on to review any changes in the region regarding access to information.
8. The Inter-American Court of Human Rights and the IACHR maintain that freedom of expression is an indispensable requisite for the very existence of a democratic society. Historically, freedom of expression has been considered necessary to protect the political stability and progress of society, but the Rapporteurship considers that it is also necessary to be aware that freedom of expression and access to information transcend the political arena and are an essential tool in the economic development of a people. The rights to freedom of expression and access to information prove, almost palpably, the interdependence of human rights as a whole, and are, at the same time, a mechanism that strengthens this interdependence.
9. As indicated above, the concentration of ownership of the media can become a threat to freedom of expression when it limits the diversity of ideas and opinions in a democratic society. In recent years, the Rapporteurship, particularly during its visits to countries, has repeatedly received reports of practices that might be considered to amount to those of a monopoly or oligopoly. Chapter V of this report looks into the consequences of this type of concentration. To do this, it analyzes the implications, studies the judgments of the European human rights system, and suggests guidelines for the inter-American system.
10. Chapter VII attempts to contribute to the interpretation of the last paragraph of Article 13 of the American Convention on Human rights regarding the prohibition of any propaganda for war and any advocacy of national, racial, or religious hatred.[4] The report studies the jurisprudence of the European system and of the U.N. Committee on Human Rights to suggest guidelines that would be compatible with the terms in which Article 13 of the American Convention on Human Rights is drafted.
11. Finally, Chapter VI reverts to the traditional evaluation by the Rapporteurship every two years of the laws of criminal defamation and the existence of laws that contemplate a crime of contempt (desacato). This year, in addition to evaluating the changes that have taken place on this issue over the last two years in the Hemisphere, a description is included of two relevant judgments handed down by the Inter-American Court of Human rights during 2004 in the cases Herrera Ulloa v Costa Rica, and Canese v. Paraguay.
12. This hard work by the Rapporteurship has consolidated its role within the Organization of American States as the office for promoting and monitoring respect for freedom of expression in the Hemisphere. This enhanced role is, in turn, generating substantially increased expectations within the Hemisphere regarding the work and performance of the Rapporteurship. Those who work and collaborate with the Rapporteurship are responding to this challenge with dedication and commitment. To meet this demand, we need not only the institutional and political backing that the Rapporteurship has received since its inception, but also financial support because without it, the range and execution of the activities required by its mandate will be impossible. The Rapporteurship does not directly receive funding from the Regular Fund of the OAS and therefore depends to a great extent on voluntary contributions from some states and on contributions from foundations and cooperation agencies for specific projects. Therefore, we must once more exhort all States in the region to follow in the footsteps of those countries that have responded to the appeal from hemispheric summits to support the Rapporteurship. The Plan of Action approved by the Heads of State and of Government at the Third Summit in Quebec City, Canada in April 2001, states that “to strengthen democracy, create prosperity and realize human potential, our Governments will support the work of the inter-American human rights system in the area of freedom of expression through the Special Rapporteur for Freedom of Expression of the IACHR.”
13. The Rapporteurship acknowledges with thanks the financial contributions received in 2004 from Argentina, Brazil, Costa Rica, the United States, and Peru. The Rapporteurship urges the other states once again to contribute their much-needed support. Donations were also received from the Ford Foundation, the Swedish International Development Cooperation Agency (SIDA), the Danish Human Rights Program for Central America (PRODECA), the Spanish Agency for International Cooperation (AECI), and the Swedish NGO Foundation for Human Rights. Some of these contributions will be essential for work to continue in 2005.
14. The present report thus summarizes the dedicated work throughout the year of the staff, the interns, and the partners of the Rapporteurship. The aim of our work continues to be to enhance the environment in which freedom of expression may be exercised, and so strengthen democracy, and ensure the wellbeing and progress of those who live in the Americas. However, for the work of the Office of the Rapporteur to succeed in this aim, there must be a response at the local level in each of the countries in the Americas from states, civil society, social communicators, and each individual, for whom, in the final instance, these pages are written.
[2] The Office would like to thank all the interns of 2004 for their hard work and important contributions to the promotion and defense of freedom of expression: Elvira Anderson, Carlos Domínguez, Fayza Elmostehi, Eric Heyer, Sonia Pérez, Julieta Sandoval, Susan Schneider, and Carlos Zelada.
[3] Action Plan, Secretariat for Summit Process, OAS, 7 (April 22, 2001), which can be accessed on http://www.summit-americas.org/Documents%20for%20Quebec%20City%20Summit/Quebec/plan-e.pdf.
[4] Article 13.5: Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punished by law.