Inter-american legal framework regarding the right to freedom of expression



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OEA/Ser.L/V/II

CIDH/RELE/INF. 2/09

30 December 2009

Original: Spanish

INTER-AMERICAN LEGAL FRAMEWORK REGARDING THE RIGHT TO

FREEDOM OF EXPRESSION

Office of the Special Rapporteur for Freedom of Expression

Inter American Commission on Human Rights

2010


Internet: http://www.cidh.org/relatoria

Email : cidhexpresion@oas.org




OAS Cataloging-in-Publication Data

Inter-American Commission on Human Rights. Office of the Special Rapporteur on Freedom of Expression.

Marco jurídico interamericano sobre el derecho a la libertad de expresión = the inter-American legal framework regarding the right to freedom of expression / Relatoría Especial para la Libertad de Expresión, Comisión Interamericana de Derechos Humanos.

p. ; cm. (OEA documentos oficiales ; OEA Ser.L/V/II CIDH/RELE/INF.)(OAS official records ; OEA Ser.L/V/II CIDH/RELE/INF.)

ISBN 978-0-8270-5457-8

1. Freedom of information--Legal aspects--America. 2. Freedom of speech--America. 3. Freedom of information--America. 4. Civil rights--America. 5. Human rights--America. I. Title. II Series. III. Series. OAS official records ; OEA/Ser.L. V/ II CIDH/RELE/INF. KG576.L7 I58 2010 OEA Ser.L/V/II. CIDH/RELE/INF. 2/09


Book printed thanks to the financial support Swedish International Development Cooperation Agency – SIDA / ASDI Texts elaborated with the financial support of the European Commission – Agreement IEDDH Cris No. 2009 / 167-432

Approved by the Inter-American Commission on Human Rights on December 30, 20091

INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

MEMBERS

Felipe González


Paulo Sergio Pinheiro
Dinah Shelton
María Silvia Guillén
Rodrigo Escobar Gil
Luz Patricia Mejía Guerrero
José de Jesús Orozco Henríquez

*******

Santiago A. Canton, Executive Secretary.


Elizabeth Abi-Mershed, Deputy Executive Secretary

Catalina Botero Marino

Special Rapporteur for Freedom of Expression

Inter American Commission on Human Rights

Organization of American States

INDEX


TABLE OF ACRONYMS AND REFERENCES vii

PROLOGUE viii

ix

INTER-AMERICAN LEGAL FRAMEWORK REGARDING THE RIGHT TO FREEDOM OF EXPRESSION 1



A.Importance and function of the right to freedom of expression 1

1. Importance of freedom of expression within the Inter-American legal framework 1

2. Functions of freedom of expression 2

B.Main characteristics of the right to freedom of expression 4

1. Entitlement to the right to freedom of expression 4

2. Dual dimension – individual and collective – of freedom of expression 4

3. Duties and responsibilities contained within freedom of expression 5

C.Types of speech protected by freedom of expression 6

1. Types of protected speech according to form 6

a. Forms of expression specifically protected by inter-American instruments 6

2. Types of speech protected according to content 8

a. Presumption of coverage ab initio for all types of speech, including offensive, shocking or disturbing speech 8

b. Specially protected speech 9

i. Political speech and speech involving matters of public interest 9

ii. Speech regarding public officials in the exercise of their duties and candidates for public office 11

iii. Speech that expresses essential elements of personal identity or dignity 16

3. Speech not protected by freedom of expression 17

D.Limits on freedom of expression 18

1. Admissibility of limitations under the American Convention on Human Rights 18

2. Conditions that limitations must meet in order to be legitimate under the American Convention 20

a. General rule: compatibility of limitations with the democratic principle 20

b. Specific conditions derived from Article 13.2: the three-part test 20

i. The limitations must be set forth in laws that are drafted clearly and precisely 20

ii. The limitations must serve compelling objectives authorized by the American Convention 22

iii. The limitations must be necessary in a democratic society to serve the compelling objectives pursued, strictly proportionate to the objective pursued, and appropriate to serve such compelling objective 24

c. Types of limitations that are incompatible with Article 13 26

i. The limitations must not amount to prior censorship, for which reason they may be established only through the subsequent and proportional imposition of liability 26

ii. The limitations cannot be discriminatory nor have discriminatory effects 27

iii. The limitations may not be imposed by indirect means such as those proscribed by Article 13.3 of the American Convention 28

iv. Exceptional nature of the limitations 28

3. Stricter standards of control for certain limitations due to the type of speech they address 29

4. Means of limitation of freedom of expression in order to protect the rights of others to honor and reputation 29

a. General rules 29

b. Cases in which the Inter-American Court has examined the conflict between the right to freedom of expression and personal rights like public officials’ right to honor and reputation 36

c. Fundamental incompatibility of “desacato laws” and the American Convention 40

E.The prohibition against censorship and indirect restrictions to freedom of expression 43

1. The prohibition against direct prior censorship 43

2. The prohibition against indirect restrictions to freedom of expression by the authorities 45

3. The prohibition against indirect restrictions to freedom of expression by causes other than the abuse of State restrictions 48

F.Journalists and the social communications media 49

1. Importance of journalism and the media for democracy; characterization of journalism under the American Convention 49

2. Responsibility inherent in the practice of journalism 51

3. Rights of journalists and State duties to protect the safety and independence of journalists and media outlets 52

4. Journalists who cover armed conflict or emergency situations 58

5. Conditions inherent in the functioning of the media 59

G.The exercise of freedom of expression by public officials 60

1. General duties of the exercise of freedom of expression by public officials 60

2. The duty of confidentiality which may apply to certain information controlled by the State 63

3. The right and duty of public officials to denounce human rights violations 64

4. The particular situation of members of the Armed Forces 64

H.Freedom of expression in the electoral context 65

I.Pluralism, diversity and freedom of expression 67

NATIONAL INCORPORATION OF THE INTER-AMERICAN STANDARDS ON FREEDOM OF EXPRESSION DURING 2009 70

A.Implementation of the legal standards of the inter-American system in national legal systems 70

B.Incorporation of standards on freedom of expression through legislative reform 76

1. The decriminalization of speech concerning matters of public interest in Uruguay 76

2. Amendments to the Criminal Code and the Press Law of Argentina to decriminalize speech in the public interest 77

C.Decisions of national courts that incorporate inter-American standards on freedom of expression 78

1. Judgment of the Federal Supreme Court of Brazil on the requirement of a professional degree for the practice of journalism 78

a. Brief summary of the case 78

b. Legal Reasoning of the Court and incorporation of inter-American standards 79

2. Judgment of the Federal Supreme Court of Brazil finding the press law incompatible with the Constitution 80

a. Brief summary of the case 80

b. Legal reasoning of the court and application of inter-American standards 80

3. Judgment T-298/09 of the Constitutional Court of Colombia, on confidentiality of sources 81

a. Brief summary of the case 81

b. Legal reasoning of the court and application of inter-American standards 81

4. Judgment of the Labor Court of First Instance in Valparaíso in Chile: social protest and freedom of expression 83

a. Brief summary of the case 83

b. Reasoning of the court and application of inter-American standards 84

5. Decision of the Supreme Court of Mexico on the unconstitutionality of vague criminal laws that protect the honor and privacy of public officials 86

a. Brief summary of the case 86

b. Legal reasoning of the court and application of inter-American standards 87

6. Decision of the First Chamber of the Supreme Court of the Nation of Mexico on the special protection of the right to freedom of expression concerning matters that may be in the public interest 91

a. Brief summary of the case 91

b. Legal reasoning and application of inter-American standards 92

7. Judgment C-417/09 of the Constitutional Court of Colombia over the truth exception (exceptio veritatis) 93

a. Brief summary of the case 94

b. Legal reasoning of the Colombian Constitutional Court and the application of inter-American standards 94

D.Conclusions 96



TABLE OF ACRONYMS AND REFERENCES

African Commission or ACHPR: African Commission on Human and Peoples’ Rights

American Convention: American Convention on Human Rights

American Declaration: American Declaration of the Rights and Duties of Man

Declaration of Principles: Declaration of Principles on Freedom of Expression

European Convention: European Convention on Human Rights and Fundamental Freedoms

European Court: European Court of Human Rights

IACHR: Inter-American Commission on Human Rights

ICCPR: International Covenant on Civil and Political Rights

ILO: International Labor Organization

Inter-American Court: Inter-American Court of Human Rights

OAS: Organization of American States

OSCE: Organization for Security and Cooperation in Europe

Office of the Special Rapporteur: Office of the Special Rapporteur for Freedom of Expression



UN: United Nations
PROLOGUE
The IACHR’s Office of the Special Rapporteur for Freedom of Expression is pleased to present this publication, which contains a systematic analysis of inter-American standards on freedom of expression, along with a review of some of the most significant legislation and court rulings from throughout the hemisphere that incorporated these standards at the domestic level in 2009. In doing this, we hope to show how regional principles can - when placed in the hands of legislators, judges, attorneys, and other actors in the legal system - become tools that are useful for strengthening the right to freedom of expression in the Americas.
The first chapter of this report lays out the principles, scope, and limits of the right to freedom of thought and expression according to the interpretation put forward by the authorized bodies of the inter-American system. This vision emphasizes the right’s fundamental importance for the development of democratic systems. It also emphasizes the right’s individual and social dimensions, guaranteeing as it does the right of individuals to freely express ideas, information, and opinions, and guaranteeing society’s right to receive information and ideas of all kind.
The chapter also analyzes the types of speech that are especially protected, as well as those that are not protected by the American Convention on Human Rights. Effectively, expressions related to matters in the public interest or to individuals who hold or are seeking to hold public office are especially protected by the system because of their fundamental relationship with democratic institutions. This principle is expressed through certain standards that the Inter-American Court and Inter-American Commission have developed in recent years, such as the greater tolerance of criticism that must be shown by public officials or public figures who find themselves subject to increased scrutiny from society. On the other hand, the inter-American system excludes certain kinds of speech from its protection, in keeping with Article 13.5 of the American Convention and other human rights instruments. In effect, child pornography, direct and public incitements to genocide, and war propaganda and hate speech that constitute incitements to violence with the intent and ability to cause such violence are all expressions that are not protected by the Convention.
One of the most important subjects this book addresses is the conditions under which limits to the right to freedom of expression are admissible. In effect, the Inter-American case law has developed a three-part test that is used to determine if restrictions on the exercise this right are acceptable under the parameters of the American Convention. This standard requires that the restrictions be clearly and precisely provided for by law; that they be designed to achieve one of the vital objectives recognized in the Convention; and that they be necessary in a democratic society. When it comes to restrictions on especially protected speech, inter-American case law has interpreted these limitations restrictively and indicated their exceptional character, as the cases analyzed herein demonstrate.
Finally, this section concludes by reviewing the inter-American case law on various problems that are particularly relevant to current democratic societies. These problems include direct or indirect censorship; special guarantees of protection for journalists and media outlets; the principles of plurality and diversity that should govern the mass media; and freedom of expression as regards elections.
The second chapter of the book analyzes how inter-American standards have been incorporated domestically by various public bodies. The first section briefly discusses the different mechanisms through which inter-American standards can be incorporated domestically. The second section shows how the legislatures in different countries have taken inter-American standards into account in promoting legal reforms intended to adapt domestic law to the inter-American legal system. For example, when Uruguay decided to decriminalize expression on matters in the public interest, its legislature did so by expressly citing the precedents of the inter-American system. Similarly, Argentina eliminated the crimes of libel and slander when related to matters in the public interest as a consequence of litigation before the inter-American system brought by journalists and civil society organizations in the Kimel case. In its judgment in that case, the Inter-American Court had ordered the Argentine state to modify its existing legal regime.
Another mechanism that allows inter-American standards to be incorporated domestically is local litigation. For example, Brazil’s Superior Federal Court ruled that requiring those who wished to practice journalism to have a diploma was unconstitutional. The Court found that the requirement was disproportionate and violated the country’s Constitution, as well as the international agreements to which Brazil is a party. The Court made a specific reference to Advisory Opinion OC-5/85, in which the Inter-American Court had ruled that requirements of this type are incompatible with Article 13 of the American Convention.
In Chile, the Valparaíso Labor Court applied inter-American standards on social protest and freedom of expression in protecting a group of workers whose right to protest was being illegally restricted. The case is particularly interesting as its use of international standards was vital for strengthening the protection of those workers’ human rights.
In Mexico, meanwhile, the Supreme Court of Justice ruled that criminal laws of the State of Guanajuato that protected honor and privacy were not compatible with the Constitution because they were extremely vague. The Court followed inter-American standards, ruling that limitations on freedom of expression must meet certain formal, substantive requirements. The Court recognized the special protection that should be granted to certain kinds of speech related to matters in the public interest. In another of the cases presented, the Constitutional Court of Colombia heard a case that questioned the constitutionality of excluding exceptio veritatis in criminal trials for slander and libel. In ruling on the case, the Court made explicit reference to various reports from the IACHR and the Office of the Special Rapporteur which make repeated calls for the decriminalization and special protection of political speech on matters in the public interest.
These kinds of rulings show that fruitful dialogue between national and regional authorities produces a virtuous circle of mutual learning and allows for greater and better guarantees to be put in place for all the region’s inhabitants. The purpose of this dialogue is to move toward more robust and effective protection of human rights. This publication, which systemizes the standards and gives practical examples of their domestic application, seeks to progress toward this important objective.


INTER-AMERICAN LEGAL FRAMEWORK REGARDING THE RIGHT TO FREEDOM OF EXPRESSION





  1. This first chapter explains the content and scope of the right to freedom of expression within the legal framework of the Inter-American System of Human Rights. The purpose of this chapter is to systematize the jurisprudence and doctrines developed by the Inter-American Court of Human Rights (hereinafter Inter-American Court) and by the Inter-American Commission on Human Rights (hereinafter IACHR), as well as the reports and opinions of the Office of the Special Rapporteur for Freedom of Expression on the matter.




  1. The following sections summarize the Inter-American doctrine and jurisprudence on the following topics: the importance and function of the right to freedom of expression; the principal characteristics of the right to freedom of expression; the types of speech protected, specially protected, and not protected by the right to freedom of expression; and the limitations on the right to freedom of expression. This chapter also discusses the standards that apply to the prohibition of censorship and indirect restrictions on freedom of expression, as well as to the right to access to information. Finally, specific sections are dedicated to various issues that have been discussed by the doctrine and jurisprudence, which are fundamental because of their importance to current democratic society: the protection of journalists and social communications media; the exercise of freedom of expression by public officials; freedom of expression in the area of electoral processes; and pluralism and diversity in the process of mass communication.




  1. Importance and function of the right to freedom of expression



1. Importance of freedom of expression within the Inter-American legal framework


  1. The legal framework of the Inter-American system for the protection of human rights is probably the international framework that provides the greatest scope and the broadest guarantees of protection to the right to freedom of thought and expression. In effect, Article 13 of the American Convention on Human Rights,2 Article IV of the American Declaration of the Rights and Duties of Man,3 and Article 4 of the Inter-American Democratic Charter4 offer a number of reinforced guarantees that do not appear to be equaled in the universal system or in any other regional system of protection.




  1. From a comparative perspective, when the texts of Article 13 of the American Convention, Article IV of the American Declaration, and Article 4 of the Inter-American Democratic Charter are contrasted with the relevant provisions of other international human rights treaties–specifically with Article 19 of the International Covenant on Civil and Political Rights or with Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms—it is clear that the Inter-American framework was designed by the American States to be more generous and to reduce to a minimum the restrictions to the free circulation of information, opinions and ideas.5 This has been interpreted by the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights as a clear indication of the importance ascribed to free expression by the hemisphere’s societies. Specifically referring to Article 13 of the American Convention on Human Rights, the Inter-American Commission has pointed out that its wording “is indicative of the importance that the authors of the Convention attached to the need to express and receive any kind of information, thoughts, opinions and ideas.”6 The importance that Article 13 confers upon freedom of expression also means that the restrictions provided for in other international instruments are not applicable in the American context, nor should such instruments be used to interpret the American Convention restrictively. In such cases, the American Convention should prevail by virtue of the pro homine principle—widely accepted by all democratic States—according to which the norm most favorable to human beings should prevail.7




  1. Inter-American case law has explained that the inter-American legal framework places this high value on freedom of expression because it is based on a broad concept of the autonomy and dignity of the individual, and because it takes into account the instrumental value of freedom of expression for the exercise of all other fundamental rights, as well as its essential role within democratic systems, as discussed below.


2. Functions of freedom of expression


  1. The importance of freedom of expression stems mainly from its triple function within democratic systems.




  1. First, it is one of the individual rights that most clearly reflects the virtue that marks – and characterizes – human beings: the unique and precious capacity to think about the world from our own perspective and communicate with one another in order to construct, through a deliberative process, not only the model of life that each one has a right to adopt, but the model of society in which we want to live. All our creative potential in arts, in science, in technology, in politics—in short, all our individual and collective creative capacity—fundamentally depends on the respect and promotion of the right to freedom of expression, in all its dimensions. This is therefore an individual right without which the first and foremost of our liberties would be denied: our right to think by ourselves and share our thoughts with others.




  1. Second, the Inter-American Commission and Court have underlined in their case law that the importance of freedom of expression within the catalogue of human rights also stems from its structural relationship to democracy.8 This relationship, which has been characterized by the bodies of the inter-American human rights system as “close,” “indissoluble,” “essential,” and “fundamental” –inter alia- explains in large part the interpretive developments on the issue of freedom of expression in the various pertinent decisions of the Commission and the Court.9 The link between freedom of expression and democracy is so important that, according to the Inter-American Commission, the very purpose of Article 13 of the American Convention is to strengthen the operation of deliberative and pluralistic democratic systems through the protection and promotion of the free circulation of information, ideas and expressions of all kinds.10 Likewise, Article 4 of the Inter-American Democratic Charter characterizes freedom of expression and freedom of the press as “essential components of the exercise of democracy.” Similarly, the freedom of expression rapporteurs of the UN, the OSCE and the OAS recalled in their first Joint Declaration of 1999 that “freedom of expression is a fundamental international human right and a basic component of civil society based on democratic principles.” Indeed, the full exercise of the right to express one’s own ideas and opinions, and to circulate all available information, as well as the possibility of deliberating in an open and uninhibited manner about the matters that concern us all, is an indispensable condition for the consolidation, functioning and preservation of democratic regimes. The formation of an informed public opinion that is aware of its rights, citizen control over the conduct of public affairs and the accountability of public officials, would not be possible if this right was not guaranteed. In this same sense, the case law has emphasized that the democratic function of freedom of expression deems it a necessary condition to prevent the consolidation of authoritarian systems and to facilitate personal and collective self-determination,11 as well as to insure that “the mechanisms of citizen control and complaints” function.12 In this regard, if the exercise of the right to freedom of expression tends not only towards the personal fulfillment of those who express themselves but also towards the consolidation of truly democratic societies, the State has the obligation to generate the conditions to ensure that the public debate not only satisfies the legitimate needs of all as consumers of a given information (entertainment, for example), but also as citizens. That is to say, the necessary conditions must be given for there to be a public, plural and open deliberation about the matters that concern us all as citizens of a given State.




  1. Finally, Inter-American case law has explained that freedom of expression is a key instrument for the exercise of all other fundamental rights. Indeed, it is an essential mechanism for the exercise of the rights to participation, religious freedom, education, ethnic or cultural identity and, needless to say, equality, understood not only as the right to be free from discrimination, but as the right to enjoy certain basic social rights. Given the important instrumental role it fulfils, freedom of expression is located at the heart of the human rights protection system in the Americas. As stated by the Inter-American Commission, “lack of freedom of expression is a cause that ‘contributes to lack of respect for the other human rights.’”13




  1. In short, the preservation of freedom of expression is a necessary condition for the free and peaceful functioning of democratic societies in the Americas. According to the Inter-American Commission, “[f]ull and free discussion keeps a society from becoming stagnant and unprepared for the stresses and strains that work to tear all civilizations apart. A society that is to be free both today and in the future must engage openly in rigorous public debate about itself.”14




  1. Main characteristics of the right to freedom of expression


1. Entitlement to the right to freedom of expression


  1. Pursuant to Article 13 of the American Convention, freedom of expression is a right of every person, under equal conditions and without discrimination of any kind.




  1. According to the relevant jurisprudence, the entitlement to the right to freedom of expression cannot be restricted to a profession or a group of individuals, nor applied solely to freedom of the press.15 In this respect, for example, the ruling in Tristán Donoso v. Panama states that: “The American Convention guarantees this right to every individual, irrespective of any other consideration; so, such guarantee should not be limited to a given profession or group of individuals. Freedom of expression is an essential element of the freedom of the press, although they are not synonymous and the exercise of the first does not condition exercise of the second. The case in question involves a lawyer who claims protection under Article 13 of the Convention.”16


2. Dual dimension – individual and collective – of freedom of expression


  1. As the case law of the inter-American system has explained on numerous occasions, freedom of expression is a right that has two dimensions: an individual dimension, consisting of the right of each person to express her own thoughts, ideas and information, and a collective or social dimension, consisting of society’s right to obtain and receive any information, to know the thoughts, ideas and information of others, and to be well-informed.17




  1. Bearing in mind this dual dimension, it has been held that freedom of expression is a means for the exchange of information and ideas among individuals and for mass communication among human beings, which involves not only the right to communicate to others one’s own point of view and the information or opinions of one’s choosing, but also the right of all people to receive and have knowledge of such points of view, information, opinions, reports and news, freely and without any interference that blocks or distorts them.18 It has been specified in this respect that it is as important for the average citizen to have knowledge of others’ opinions, or of the information made available by others, as it is for him to have the right to impart his own.19




  1. A specific act of expression involves both dimensions simultaneously. Likewise, a limitation to the right to freedom of expression affects both dimensions at the same time.20 Thus, for example, in the case of Palamara Iribarne v. Chile, the Inter-American Court held that when Chilean military criminal justice authorities prevented (by means of prohibitions and physical seizures) the petitioner from publishing a book that he had already written and that was in the process of being printed and distributed, both dimensions of freedom of expression were violated: Mr. Palamara’s right to exercise his freedom by writing and publishing the book was adversely affected, and the right of the Chilean public to receive the information, ideas and opinions set forth in that writing was also infringed.



  1. The two dimensions of freedom of expression are of equal importance; they are inter-dependent and must be guaranteed simultaneously, in full, in order for the right enshrined in the Inter-American instruments to be completely effective.21




  1. One of the main consequences of the duty to guarantee both dimensions simultaneously is that one of them cannot be affected by invoking the preservation of the other as a justification; thus, for example, “[o]ne 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. It is equally true that the right to impart information and ideas cannot be invoked to justify the establishment of private or public monopolies of the communications media designed to mold public opinion by giving expression to only one point of view.”22


3. Duties and responsibilities contained within freedom of expression


  1. The exercise of freedom of expression entails duties and responsibilities for those who express themselves. The basic duty derived from it is the duty not to violate the rights of others while exercising this fundamental freedom. The scope of the duties and responsibilities also depends on the specific situation in which the right is exercised, and the technical method used to voice and impart the expression.




  1. Types of speech protected by freedom of expression


1. Types of protected speech according to form



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