Freedom of Expression
Evaluation
5. In 2004 the exercise of the freedom of thought and expression in the Hemisphere continued to face the same types of problems that have been mentioned by the Office of the Special Rapporteur in recent years, but there was a clear increase, in some countries, of acts of violence against social communicators.
6. Cuba continues to be the only country in the Hemisphere in which the freedom of expression is violated categorically, and, therefore, it is the only state in which it can be said that Principle 1 of the Declaration of Principles on Freedom of Expression is systematically violated.[1]
7. Based on what is reflected in this report, once again cases have been presented of assassinations of journalists killed because of their work. In this connection,
the Office of the Special Rapporteur recalls that Principle 9[2] is very clear on establishing that assassinations of social communicators violate the rights of individuals and severely restrict the freedom of expression. On four occasions the Office of the Special Rapporteur noted its concern through press releases, particularly in relation to cases that occurred in Brazil, Mexico, and Nicaragua. A total of eleven assassinations are reported in this report (Brazil, 2; Haiti, 1; Mexico, 3; Nicaragua, 2; Peru, 2; Dominican Republic 1), although it should be noted that there were other deaths of social communicators in which the relationship to their professional activity was not sufficiently clarified so as to be able to consider them attacks on the freedom of expression.
8. Physical assaults and threats also continue having a negative impact on the full exercise of the freedom of expression. Principle 9 also emphasizes that such situations restrict this fundamental right. While it is true that in many countries one can find wide-ranging discussion and criticism of government policies in the media, it is no less true that such legitimate activity has brought as a consequence assaults or threats, which are unacceptable in a democratic society. Acts at odds with Principle 9 were reported, in 2004, from a larger number of countries: Argentina, Brazil, Colombia, Cuba, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Paraguay, Peru, Dominican Republic, Trinidad and Tobago, Uruguay, and Venezuela.
9. As in the preceding year, in 2004 there were public demonstrations in several countries of the Hemisphere. Many of them ended in acts of violence, whose victims of which included journalists, cameramen, and other employees of media outlets who covered these events. Such situations occurred in Venezuela, Haiti, El Salvador, and Peru.
10. Even though state agents may not have been directly involved in the possible violations of Principle 9 mentioned in this report, the Office of the Special Rapporteur notes that it is an obligation, emanating from the American Convention, not only to respect human rights, but also to guarantee their exercise. For that reason, as the Principle in question says: “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 Office of the Special Rapporteur once again calls on the States to ensure they draw on all legal mechanisms within their reach to carry out this duty, so as to show their unequivocal will to guarantee the free exercise of the freedom of expression. Impunity for such acts should be eradicated in the Hemisphere.
11. In addition, judicial actions continued that may have a chilling effect on the exercise of the freedom of expression. Criminal proceedings against those who criticize matters of public interest, whether by using laws on desacato, or those on slander, libel, or criminal defamation, persist in the Hemisphere. In many of the countries of the Hemisphere, the Office of the Special Rapporteur has found the existence or use of these laws including: Brazil, Cuba, Ecuador, Grenada, Honduras, Mexico, Panama, Paraguay, Uruguay, and Venezuela.
12. Such criminal proceedings are feasible given that many Member States continue to have in their criminal law the crime of desacato or criminal sanctions for criticizing public officials in the performance of their duties. Nonetheless, in 2004, major progress was seen with the derogation of constitutional support for such laws in Panama and the decriminalization of criticism when voiced by journalists in El Salvador. In Honduras, the Supreme Court, through the Criminal Chamber, ruled in favor of derogating the desacato law. In Mexico, to the contrary, the state of Chiapas adopted a legal reform to provide for stiffer penalties for crimes against honor provided for in the Criminal Code. The Member States need to bring their criminal legislation into line with the recommendations that emanate from the Declaration of Principles on Freedom of Expression, and the standards that emanate from the decisions, opinions, and reports of the organs of the inter-American system for the protection of human rights.
13. In the course of 2004, two important judgments on criminal defamation were handed down by the Inter-American Court of Human Rights, in the cases of Mauricio Herrera v. Costa Rica and Ricardo Canese v. Paraguay, which largely support the opinions that the Commission, and its Office of the Special Rapporteur, have stated with regard to criminal defamation.[3] The Office of the Special Rapporteur urges the States to take these precedents into account in possible legal reforms.
14. Principle 8 of the Declaration clearly establishes: “Every social communicator has the right to keep his/her source of information, notes, personal and professional archives confidential.” In 2004, there were worrisome situations in which social communicators were placed on trial for refusing to reveal the identity of their sources. In other cases, their files were searched and their notes were seized, or they were asked to hand them over. Such situations were found in Argentina, Canada, Chile, the United States, Mexico, and Venezuela. By way of contrast, in El Salvador, and in the province of Tucumán, in Argentina, bills were passed that guarantee the confidentiality of sources.
15. Access to public information continued to be on the agenda of several Member States. This right is enshrined in Principle 4[4] of the Declaration. In Ecuador and the Dominican Republic, laws were adopted providing for access to public information. In Argentina, debate continued on a proposed access-to-information law. Nonetheless, the Office of the Special Rapporteur stated its concern over amendments made to the bill by the Argentine Senate that could be detrimental for access to information. In Honduras, proposed legislation was introduced on the matter.
16. Principle 7 of the Declaration establishes: “Prior conditioning of expressions, such as truthfulness, timeliness or impartiality is incompatible with the right to freedom of expression recognized in international instruments.” The Inter-American Court has also noted that “One cannot legitimately rely on the right of a society to be honestly informed in order to put in place a regime of prior censorship for the alleged purpose of eliminating information deemed to be untrue in the eyes of the censor.”[5] Nonetheless, Venezuela adopted the Law on Social Responsibility in Radio and Television, which contains conditions of accuracy and timing of informational programs, despite repeated reminders by the Office of the Special Rapporteur and by the Inter-American Commission itself that the bill could violate the freedom of expression.
17. While both the Declaration of Principles on Freedom of Expression, at Principle 6,[6] and the caselaw of the Inter-American Court of Human Rights have been clear in establishing that the compulsory membership in an association prescribed by law for the practice of journalism is incompatible with Article 13 of the American Convention on Human Rights, in Nicaragua the Colegio de Periodistas was established; it was a step towards enforcement of Law 372 of 2000, which requires such compulsory membership, and which continues to be the law in Nicaragua. The Constitutional Chamber of the Supreme Court of Venezuela issued a resolution requiring the compulsory membership in an association prescribed by law for the practice of journalism. Information was also received on the current law including such a requirement in Bolivia.
18. As in previous years, during this year the Office of the Special Rapporteur continued to view with concern the possibility that media organizations might not always act responsibly or ethically. It should be reiterated, however, that the media organizations are mainly answerable to the public, not to the government.
19. Principle 12 of the Declaration expressly states that monopolies or oligopolies in the ownership and control of media should be subject to antitrust laws, for they conspire against democracy on restricting the plurality and diversity ensured by the full exercise of the right of all citizens to information. The concentration of media ownership impedes the plural and diverse expression of the various sectors of society. In 2004, the Office of the Special Rapporteur received reports of problems involving the excessive concentration of radio and television ownership in Guatemala. The Office of the Special Rapporteur reiterates the importance of observing this principle.
20. In Mexico, Colombia, and Bolivia, major progress was made towards greater democratization in the assignment of radio frequencies.
21. Principle 5 notes in part: “Restrictions to the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the imposition of obstacles to the free flow of information violate the right to freedom of expression.” In some countries of the region, however, the states have mechanisms for interfering in the expressions of individuals. The clearest case is Cuba, where in 2004 reports continued to come in describing acts of censorship and repression against those with a dissident voice towards the Government.
22. Article 13 of the American Convention on Human Rights expressly prohibits indirect violations of the freedom of expression,[7] this prohibition is echoed in Principle 13 of the Declaration.[8] In 2004, acts related to this principle were reported in Venezuela, Honduras, Guatemala, Cuba, Costa Rica, and Brazil.
23. As in the previous year, it was found that the journalists’ situation is generally more precarious outside of the capital cities, where they face more violence and more frequent direct and indirect pressures, as is the case in Argentina, Brazil, Colombia, Guatemala, Mexico, and Peru.
24. Finally, and as has been noted in previous reports, the Office of the Special Rapporteur continues to consider it necessary to strengthen the political will of the Member States to carry out reforms in their legislation to ensure society the broad exercise of the freedom of expression and information. Democracy requires broad freedom of expression and it cannot deepen if mechanisms continue in place that impede its broad exercise. The Office of the Special Rapporteur reiterates the need for the States to assume a more solid commitment to respect this right, so as to achieve the consolidation of democracies in the Hemisphere.
[1] Principle 1. Freedom of expression in all its forms and manifestations is a fundamental and inalienable right of all individuals. Additionally, it is an indispensable requirement for the very existence of a democratic society.
[2] Principle 9. The murder, kidnapping, intimidation of and/or threats to social communicators, as well as the material destruction of communications media violate the fundamental rights of individuals and strongly restrict freedom of expression. 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.
[3] See Chapter VIII.
[4] Principle 4. Access to information held by the state is a fundamental right of every individual. States have the obligation to guarantee the full exercise of this right. This principle allows only exceptional limitations that must be previously established by law in case of a real and imminent danger that threatens national security in democratic societies.
[5] I/A Court H.R., Advisory Opinion OC-5/85.
[6] Principle 6. Every person has the right to communicate his/her views by any means and in any form. Compulsory membership or the requirements of a university degree for the practice of journalism constitute unlawful restrictions of freedom of expression. Journalistic activities must be guided by ethical conduct, which should in no case be imposed by the State.
[7] Article 13(3): “The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.”
[8] Principle 13. The exercise of power and the use of public funds by the state, the granting of customs duty privileges, the arbitrary and discriminatory placement of official advertising and government loans; the concession of radio and television broadcast frequencies, among others, with the intent to put pressure on and punish or reward and provide privileges to social communicators and communications media because of the opinions they express threaten freedom of expression, and must be explicitly prohibited by law. The means of communication have the right to carry out their role in an independent manner. Direct or indirect pressures exerted upon journalists or other social communicators to stifle the dissemination of information are incompatible with freedom of expression.