Freedom of Expression
B. Evaluation
1. The general situation in the hemisphere with regard to freedom of expression did not change significantly during 2001. The journalists, media, and societies of the Americas continue to encounter obstacles that prevent them from freely exercising the right of free speech. The assassination of journalists is still the most serious problem affecting freedom of expression and information in the continent. During the year 2001, in this hemisphere, nine journalists were murdered. In Bolivia, Brazil, Colombia, Costa Rica, Guatemala, Haiti, Mexico, and Paraguay, journalists lost their lives because they were doing their jobs. That figure is considerably higher than those reported in the previous two years.[1] The increase in the number of journalists killed during 2001 means more than just a violation of those individuals’ basic right to life in pursuit of their professions; it also places all other media workers in a situation of extreme vulnerability and danger.
2. The Rapporteur observes with concern the high level of impunity in a large number of cases of crimes against journalists, both in cases in which the suspected perpetrators are agents of the state and in cases in which private individuals are suspected. The Commission has ruled that the failure to conduct serious, impartial, and effective investigations of such crimes and to punish the perpetrators and planners thereof does not merely constitute a violation of the right to due process of the law; it also represents a violation of the right to provide information and express ideas freely, thus giving rise to international responsibility on the part of the state in question.[2] In this connection, the Rapporteur quotes the provisions of the ninth principle of the Declaration of Principles on Freedom of Expression:
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. This chapter includes a section (see table, page 65) that deals with assassinations of journalists. The circumstances surrounding these crimes and the progress that has been made in investigating them are analyzed in this section, and they are also described in the individual country sections.
4. In this section, using the information received, the Rapporteur’s office has prepared a general evaluation of the conditions prevailing for the exercise of free expression in each of the member states, identifying the main problems in each country, the positive steps that have been taken, and any setbacks that have occurred. In preparing this evaluation, the Rapporteur’s office made use of information submitted by independent organizations active in the defense and protection of human rights and free speech, reports from independent journalists who have been directly affected, and information provided by OAS member states at the Rapporteur’s request, among other sources.
5. In addition to the assassination of journalists, the Rapporteur notes that in several of the region’s countries, techniques intended to silence the work of reporters and the media are still in common use. Physical and psychological threats and aggression; the harassment and intimidation of journalists and media companies; legal action initiated by the authorities with the aim of silencing the press: these practices are all used in several of our nations.
6. The Rapporteur notes that the arbitrary use of libel and slander laws against investigative journalists in order to silence criticism of public officials continued in several countries during 2001. Contrary to the jurisprudence of the inter-American system, approximately 17 countries still have desacato, or disrespect, laws on their statute books, and these are sometimes used to silence the media. The Rapporteur has maintained, on repeated occasions, that provided there is an independent judiciary and the civil courts are used, legal action is a valid tool for defending against abuses committed by journalists or the media. The Rapporteur notes, however, that lawsuits filed by public officials are often used as a form of intimidation to silence the work of reporters and the press.
7. Given the fundamental role that the right of free expression plays in a democratic society, punishments for reporting on matters of public interest can only be imposed in exceptional circumstances.[3] Specifically, a state’s legitimate interest in punishing the publication or transmission of information must be sufficiently imperative to outweigh the basic interest of broad freedom of expression.[4] Publications that harm the reputation and privacy of public persons can only be punished through civil proceedings and only when the information was published with “actual malice.”[5] Thus, as indicated in Principle 10 of the Declaration of Principles on Freedom of Expression: “In addition, in these cases, it must be proven that in disseminating the news, the social communicator had the specific intent to inflict harm, was fully aware that false news was disseminated, or acted with gross negligence in efforts to determine the truth or falsity of such news.”
8. With respect to access to state-held information and the right of habeas data, we have seen debates on this issue open up within the civil societies of several states. The enactment of laws to protect this right is vital to ensure the transparency of government actions and to protect society’s right of access to information.
9. As stated in previous reports, the Rapporteur still believes that member states need to display greater political willingness to work toward amending their laws and ensuring that their societies fully enjoy freedom of expression and information. Democracy requires broad freedom of expression, and that cannot be pursued if mechanisms that prevent its generalized enjoyment remain in force in our countries. The Special Rapporteur again underscores the need for states to assume a stronger commitment toward that right, in order to help consolidate the hemisphere’s democracies.
10. The Rapporteur’s office also points to the importance of the Internet and its relationship with broad freedom of expression and access to information. The Internet is a means of communication that allows individuals intense involvement in discussing and exchanging information about matters of interest to them. The global dimension of the Internet allows people to obtain information and to communicate instantaneously, irrespective of geographical limitations and without distinctions of race, gender, religion, or social origin. Both the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights offer broad interpretations of the scope of free expression. The Rapporteur urges states to implement mechanisms that will allow all citizens access to the Internet and also to refrain from regulating its content in any way that would violate the provisions of these two international instruments.
11. Finally, the Rapporteur would like to request that all the nations of the Americas, together with their civil societies as a whole, assist him submitting information on the general situation prevailing in their countries with respect to free speech.
[1] See: Annual Reports of the Special Rapporteur for Freedom of Expression, 1999 and 2000.
[2] IACHR, Report No. 50/99, Case 11.739 (Mexico), April 13, 1999. In addition, the Inter-American Court of Human Rights has ruled that: “The State is obligated to investigate every situation involving a violation of the rights protected by the Convention. If the State apparatus acts in such a way that the violation goes unpunished and the victim’s full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction. The same is true when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention.”
[3] See Article 13.2 and 13.5 of the American Convention on Human Rights.
[4] See: Inter-American Court of Human Rights, Advisory Opinion OC-5/85, November 13, 1985 (Arts. 13 and 29 of the American Convention on Human Rights), para. 46, quoting Eur. Court H. R. The Sunday Times case, judgment of April 26, 1979, Series A No. 30, para. No. 59, pp. 35-36).
[5] See the tenth principle of the Declaration.