Libertad de Expresión

1 - Introduction


In 1858, J.S. Mill wrote: “It is to be hoped that the time in which it was necessary to defend freedom as expression as one of the guarantees against corrupt or authoritarian government has passed.”[1]


In recent years, unfortunately, some 150 journalists have been murdered and hundreds more threatened in our hemisphere. Indirect ways to limit freedom of expression are constantly being developed, either through legislation, court rulings or government-led initiatives. More than a century after Mill wrote his book, it is still necessary to defend freedom of expression as a guarantee, no only in times of dictatorship, but also under the rule of democratically elected governments. [2]


The last two decades will go down in history as a time of major political change. People around the globe turned their backs on oppressive, authoritarian regimes to usher in more open governments democratically chosen in transparent elections. Free and fair elections became the preferred road to return to democracy.  Such elections are without a doubt a prerequisite for democracy, but in and of themselves are hardly sufficient. Authoritarian regimes do not automatically become democratic through one or more elections, not matter how free and fair they may be.


For the continued development of stable and participatory democracy, elections in themselves are not enough. Other elements inherent to democratic society must also be fostered, such as recognition and respect for human rights, effective and independent legislative and judicial branches of government, a party system that facilitates open lines of communication between citizens and leaders, an active civil society, and above all, wide-ranging freedom of expression and access to information to ensure that all citizens have the information they need to make decisions.


Freedom of expression certainly holds a prominent position among the different requirements for a participatory and stable democracy. If it does not exist, it becomes impossible to develop the other elements needed to  deepen democracy. Thus, freedom of expression has often been said to be the fundamental freedom underlying the very existence of democratic society.


In this regard, the Inter-American Court of Human Rights has said, “Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. It is also a conditio sine qua non for the development of political parties, trade unions, scientific and cultural associations and, in general, those who wish to influence the public. It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed. Consequently, it can be said that a society that is not well informed is not a society that is truly free.”[3]


For freedom of expression to be fully developed, it must be reinforced by the political will of those who govern, by appropriate legislation laying the legal foundation for its defense and by an independent and effective judiciary that guarantees that it can be exercised to the fullest extent.


Great strides have been made in fostering respect for freedom of expression throughout the hemisphere. Democracy has led to greater freedom of expression in comparison to previous decades when many countries in the Americas were under the rule of dictatorships or very authoritarian governments. Nevertheless, if democratic institutions are used to limit freedom of expression, democracy will not have been planted in the fertile ground necessary to extend its branches through the whole of society. Quite to the contrary, such ground may nurture authoritarian tendencies that continue to survive even after the birth of democracy.[4]


In many Latin American democracies today, the public institutions designed to act as checks on authorities and individuals are still weak. For example, in many cases the Judicial Power fails to be efficie to investigate situations brought to their attention and punish guilty parties, as appropriate. Corruption and drug trafficking have taken their toll on public institutions. In countries affected by such problems, the press has become the main check on authorities and individuals alike by bringing to light illegal or abusive acts previously unnoticed, ignored or perpetuated by official control bodies. In many instances the press has become the most effective instrument to uncover and/or stop the illegal or abusive acts of authorities or individuals. And in doing so, it often puts itself at risk.


This is the context in which the Office of the Special Reporter will evaluate freedom of expression in the hemisphere today. Such an examination would fall short if it were not to take into account the democratic framework now in place. Free elections, respect for human rights, independent branches of government and freedom of expression are all basic elements of democracy and no one of them can be evaluated apart from the others.


This is the first report prepared by the recently appointed Special Reporter on Freedom of Expression and, as such, it aims to prepare the way for a series of both general and subject-specific reports to come. Here the main objectives of the Office of the Special Reporter will be outlined and the initial views and concerns of the Reporter made known.



Chapter I will cover background, the goals contemplated by the Inter-American Commission on Human Rights (IACHR) when it decided to create the Office of the Special Reporter on Freedom of Expression, the reporter’s work plan for the first three years and an account of what has been done in these first five months. Chapter II will review the basic norms on freedom of expression enshrined in the American Convention on Human Rights (“the American Convention”) and the case law developed by the organs of the Inter-American system for the protection of human rights. Mention will also be made of cases now pending before the Inter-American Court of Human Rights. In Chapter III and IV the Special Rapporteur will outline his main concerns regarding freedom of expression today and address three specific problems: the murder of journalists, contempt laws and rules on the compulsory membership of journalists in professional associations (“compulsory licensing”). In Chapter V the Rapporteur will make some final considerations and recommendations for the attention of the Member States in general.


[1] J. S. Mill, “On Liberty” in “On liberty and other writings”, edited by Stefan Collini, Cambridge University Press, pages 5 a 115.

                        [2] It is difficult to precisely establish the number of journalist murdered during the past years. In many cases, it is not possible to determine the motive of the murders with absolute certainty. This number is used by different organizations involved in the defense of freedom of expression around the world.

[3]Inter-American Court of Human Rights, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights), Advisory Opinion OC-5/85 of November 13, 1985. Series A No. 5, para. 48. Annex A

                        [4] The Rapporteur considers also that poverty and social exclusion, affecting vast sectors of society in the Americas have an impact on the freedom of expression of their citizens. Their voices and the progressive development of human rights as a whole are postponed.