TABLE OF CONTENTS

REPORT OF THE RAPPORTEUR FOR FREEDOM OF EXPRESSION 1999

INTRODUCTION

CHAPTER I GENERAL REPORTS

CHAPTER II ASSESSMENT OF THE SITUATION OF FREEDOM OF EXPRESSION IN THE HEMISPHERE

CHAPTER III FINAL THOUGHTS AND RECOMMENDATIONS

ANNEXES

INTRODUCTION

The right of freedom of expression is a fundamental guarantee for ensuring the rule of law and democratic institutions. Article IV of the American Declaration of the Rights and Duties of Man stipulates that: "Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever." /1  Similarly, Article 13 of the American Convention /2  states that: "Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice." /3

Similarly, the importance of freedom of expression in the hemisphere was recognized and enshrined in the Declaration of Chapultepec, which was adopted in March 1994 and has been signed by numerous heads of state and government. Principle No. 1 of this Declaration states that: No people or society can be free without freedom of expression and of the press. The exercise of this freedom is not something authorities grant, it is an inalienable right of the people." /4

The Special Rapporteur for Freedom of Expression recognizes that freedom of expression covers a wide range of activities that affect all individuals. This report refers only to some of the wide range of issues affecting freedom of expression. The Special Rapporteur will continue to issue reports dealing with other areas related to this basic right that are not addressed herein.

The democratic system now pervasive in the hemisphere has helped secure greater respect for the right to freedom of expression than never before. Notwithstanding these important accomplishments, we ought not to delude ourselves into thinking that there are no violations of freedom of expression or that whatever violations do exist are inconsequential. The Office of the Rapporteur has been functioning for almost two years and, in that time, has encountered many cases in which freedom of expression and information has been abridged. They include almost absolute censorship, murders, assaults, threats against journalists, clearly restrictive laws, persecutions conducted through judicial channels, and so on. The democracy achieved in recent years should inspire us to find answers to these problems rather than hide behind its façade and deny them. Greater freedom of expression serves to make democracy deeper and stronger. Although approximately two decades have passed since the return to democratic government, freedom of expression and information is still limited in a number of States in this hemisphere.

This report states that many domestic laws need to be amended to bring them in line with international norms for the protection of freedom of expression and information. Among the laws in need of change are those on expression offensive to public officials (desacato laws) and those on libel and slander. The right to access to official information and the right to habeas data must also be guaranteed. Without laws clearly in line with international standards for freedom of expression, this right, so basic to democracy, will always be in jeopardy.

Similarly, one of the most controversial issues with regard to freedom of expression in recent years concerns the concept of truthful information. In its Advisory Opinion on compulsory membership in associations for the practice of journalism, the Inter-American Court of Human Rights stated 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

Violence against journalists continues throughout the hemisphere. Murders, assaults and threats are a frequent occurrence, yet too many States still refrain from taking the measures needed to bring the responsible to justice.

The lack of equality encountered by women in exercising their right to freedom of expression and information is also a major source of concern for the Office of the Rapporteur. Bringing about greater freedom of expression and information for women will have a positive effect on securing respect for other basic rights.

Another of the issues included in this report is freedom of expression and the Internet. Mention is made of the need to promote widespread access to this technology within the legal framework of protection established by Article 13 of the American Convention.

The purpose of this report is to bring some of the major problems in the hemisphere to public attention. The idea is to spark public debate and to inform about the need for amending domestic laws. All this will help lead the changes needed to make democracies now prevalent throughout the hemisphere stronger, by engaging every sector of society in the exercise of free expression and opinion.

A. Mandate and competence of the Office of the Rapporteur for Freedom of Expression and Information

The Office of the Special Rapporteur for Freedom of Expression and Information is a permanent office with functional independence and its own budget. The Inter-American Commission on Human Rights created the Office in exercise of its authorities and competence. The Office operates within the juridical framework of the Commission. /6

The Inter-American Commission on Human Rights (IACHR) is an organ of the Organization of American States (OAS) whose primary function is to promote the observance and defense of human rights and to serve as the Organization’s advisory body on this subject. The Commission’s authority derives mainly from the American Convention on Human Rights,the American Declaration of the Rights and Duties of Man and from the Charter of the Organization of American States. The Commission investigates complaints of human rights violations, renders its findings on those complaints, conducts on-site visits, prepares draft treaties and declarations on human rights, and prepares reports on the situation of human rights in the countries of the region.

The Commission has addressed the specific issue of freedom of expression by way of its system of individual petitions, where it has ruled on cases of censorship and crimes committed against journalists that have gone unpunished. In its special reports, such as the report on contempt laws that penalize expression offensive to public officials (leyes de desacato) /7, the Commission has spoken out about threats to the media and the restrictions placed on the media. Similarly, the Commission has examined the situation of freedom of expression and information during a number of its on-site visits and in its general reports. /8 The Commission has also requested precautionary measures for urgent action to avoid irreparable harm to persons. /9 In several cases, these measures were adopted to allow freedom of expression to be exercised in full and to protect journalists. /10

The Commission saw the deep concern that many sectors of society in the member States shared with regard to the restrictions constantly placed on exercise of the right to freedom of expression and information and listened to their suggestions. From its own observations, the Commission perceived the serious threats and obstacles to freedom of expression and information, a building block and buttress of the rule of law. Therefore, at its 97^th regular session in October 1997 and in exercise of the authorities that the Convention and its own Regulations confer upon it, the Commission, by unanimous vote, decided to create an Office of the Special Rapporteur for Freedom of Expression (hereinafter "the Office of the Rapporteur"). It established it as a permanent unit with functional independence and its own operating structure. At its 98^th special session in March 1998, the Commission determined what the general characteristics and functions of the Office of the Rapporteur would be and decided to create a voluntary fund of economic assistance for the Office. /11  In 1998, the Commission announced a public competition for the position of Special Rapporteur for Freedom of Expression in the Americas. After evaluating all the applications and interviewing a number of candidates, the Commission decided to appoint an Argentine attorney, Santiago Alejandro Canton, as Special Rapporteur. The latter started his work on November 2, 1998.

In creating the Office of the Rapporteur, the Commission had several objectives in mind for it. It wanted the Office to stimulate awareness of the importance of full respect for freedom of expression and information in the hemisphere, given the fundamental role that right plays in building and strengthening the democratic system of government and in getting violations of the other rights reported and protected. It also wanted it to make specific recommendations to the member States on matters related to freedom of expression and information so that they will adopt progressive measures to further it. Another goal was to have reports and specialized studies prepared on the subject pointing up where this right is being violated in some OAS member State.

The Commission’s idea of creating a permanent Office of the Rapporteur for Freedom of Expression and Information had the full support of the OAS member States during the Second Summit of the Americas. There, the Chiefs of State and Heads of Government of the Americas recognized the fundamental role that freedom of expression and information plays in human rights and within a democratic system and expressed their satisfaction with the creation of this Office. In the Declaration of Santiago, adopted in April 1998, the Chiefs of State and Heads of Government expressly stated that:

At that same Summit of the Americas, the Chiefs of State and Heads of Government expressed their commitment to support the Office of the Rapporteur for Freedom of Expression. The Plan of Action from that Summit contains the following recommendation:

Since taking office in November 1998, the Special Rapporteur has participated in numerous events to inform about the activities and objectives of this Office. The following is a description of the principal activities carried out during 1999.

In March the Special Rapporteur attended the Midyear Meeting of the Inter-American Press Association (IAPA), held in Jamaica. In May, he participated in a conference held on the occasion of World Freedom of the Press Day with the United Nations Educational, Scientific and Cultural Organization (UNESCO) in Bogota, Colombia. In June, he attended the twenty-ninth regular session of the OAS General Assembly, held in Guatemala City.

In June he traveled to Chile at the invitation of two universities. He was there to participate in two seminars on freedom of expression and information, prompted by the recent court-ordered censorship of El Libro Negro de la Justicia Chilena [the Black Book of Chilean Justice] written by Alejandra Matus and published by Planeta publishers. During his visit in Chile, the Special Rapporteur had an opportunity to speak and meet with officials from the administration, the courts and the legislature, as well as journalists, representatives of the media, professors and members of civil society in general. /14

In July, in Antigua, Guatemala, the Special Rapporteur attended the 6th Seminar on the Media and Democratic Society, organized by the freedom of expression program of the Inter-American Institute of Human Rights. This seminar was aimed at journalists, nongovernmental organizations, and civil servants from Central America and Mexico. Also in July, the Special Rapporteur joined the Inter-American Commission on Human Rights for an on-site visit to Paraguay. During the visit, he met and spoke with Paraguay’s highest authorities, as well as journalists, representatives of the media and civil society in general. The Special Rapporteur is currently preparing a report on the situation of freedom of expression and information in Paraguay, which will shortly be presented to the Commission. /15

In October he participated in the 55^th General Assembly of the Inter-American Press Association (IAPA) in Houston, Texas, with more than 500 other delegates from across the hemisphere. As he had at his first meeting with the IAPA, the Special Rapporteur said that he hoped to arrange a smooth, free-flowing exchange of information and experiences with the IAPA. During this meeting, the Rapporteur again had occasion to meet personally with a number of IAPA representatives and discuss the status of freedom of expression and information in a number of countries of the region.

At OAS headquarters in November, the Special Rapporteur welcomed Panama’s Foreign Minister, His Excellency José Miguel Alemann, and Panama’s Ambassador of Multilateral Policy, Carlos Guevara Mann. During the meeting, various views were shared on the situation of freedom of expression and information in Panama. The Panamanian government expressed an interest in having the Special Rapporteur visit that country in order to acquaint himself with the situation of freedom of expression and information in Panama and examine it in depth. The Foreign Minister invited the Special Rapporteur to attend the conference on Panama: Gateway to the Twenty-first Century, organized by the Ministry of Foreign Affairs as part of the events to mark the transfer of the Panama Canal. The Special Rapporteur accepted the invitation and attended the event in December. 

In late November, the International Centre against Censorship, a nongovernmental organization headquartered in London and also known as Article XIX, invited the Special Rapporteur to participate in the seminar titled "International Mechanisms for Promoting Freedom of Expression." The event was also attended by the other two defenders of freedom of expression and information in the world: Abid Hussain, United Nations Special Rapporteur on Freedom of Opinion and Expression, and Freimut Duve, the Organization for Security and Cooperation in Europe (OSCE) Representative on Freedom of the Media. The three rapporteurs analyzed the major problems and challenges for freedom of expression and information in the various regions of the world. They agreed to meet annually and to coordinate efforts with a view to conducting joint activities for better protection and dissemination of the right to freedom of expression and information. At the end of the seminar, the three promoters of freedom of expression and information signed a joint statement, which will be discussed at greater length later in this report. A copy is attached. /16

This chapter deals with the situation of freedom of expression and information in the hemisphere, and it singles out the main problems and challenges. It begins with some basic principles of freedom of expression and information that the hemisphere’s various domestic legal systems must recognize in order to guarantee effective exercise of this right. It also discusses two other issues of great importance: women and freedom of expression, and the Internet and freedom of expression. At the end of the chapter there is a mention of some states that warrant the attention of this office.

 A. Introduction

 Freedom of expression and information in the hemisphere has improved notably in comparison with past decades, when dictatorial or authoritarian regimes aggressively curtailed freedom of expression and information. However, in many States, freedom of expression and information is still in peril, because the climate necessary to cultivate and protect it has not been created. A wide variety of factors have contributed to this situation. Journalists are killed and/or abducted. The media and journalists in general are routinely exposed to threats, harassment and intimidation. All too often, crimes committed against journalists go unpunished. Some laws are inconsistent with the American Convention on Human Rights and other international instruments. The courts sometimes harass and intimidate journalists and rule in favor of prior censorship. 

The murder of journalists is undoubtedly the most brutal method of abridging freedom of expression and information. In 1999, six journalists were killed because of their journalistic activities: five in Colombia and one in Argentina. This is less than the number given in the 1998 Report, which reported that 18 journalists had been killed in various States in the hemisphere by reason of their profession. /17

The intimidation of journalists and/or their families, through verbal and/or written threats, and the physical assaults upon their persons and/or property is the method most often used to abridge freedom of expression and information. In 1999, the Special Rapporteur received numerous communications reporting cases where journalists had been intimidated, especially those engaged in investigative journalism. 

Because freedom of expression is so crucial to any democratic system, States must step up their efforts to comply with their duty to investigate and prosecute crimes against freedom of expression and punish those responsible, and to prevent any unlawful interference with the enjoyment of this right. The Commission has established that the failure to conduct a serious investigation of crimes against journalists and to prosecute and punish the material and intellectual authors of those crimes is not only a violation of the guarantees of due process of law and other rights, but also a violation of the right to inform and be informed and to express oneself freely and publicly. In these cases the State incurs in international responsibility. /18

Although murder, abduction, and intimidation are the principal means used to curtail freedom of expression and information, the existing legal restrictions are the main institutional obstacle to the full and effective recognition and enjoyment of this right, protection of the other basic rights, and the development of a pluralistic, democratic society. The first step toward building a defense of the right to freedom of expression and information is the enactment of the proper laws. Many laws in this hemisphere do not measure up to international standards and must be amended for the States to have a body of law that promotes and defends freedom of expression and information. 

For example, many States in this hemisphere still have the so-called desacato laws on the books./19  In some States journalists continue to be harassed with the threat of being charged with the crime of slander and libel. In some States, a journalism degree is required to practice the profession, and under many legal systems access to public or personal information is restricted. Some States have embraced the concept of truthful information, which in 1999 was introduced into the Venezuelan Constitution. That is one of the most serious setbacks for freedom of expression and information in this hemisphere. 

It is important to emphasize that under Article 2 of the American Convention, the States have a duty "to adopt, in accordance with their constitutional processes and the provisions of the Convention, such legislative or other measures as may be necessary to give effect to th[e] rights or freedoms" set forth in the American Convention. The Court has ruled that "every State has the legal duty to adopt the measures necessary to comply with its obligations under the treaty, whether those measures be legislative or of some other kind." /20

This main purpose of this report is to bring to the States’ attention the main problems in the legislation, so that they may be resolved and the laws brought in line with international standards.

B. Legislation and freedom of expression 

Any analysis of the laws that directly affect freedom of expression and information must be premised upon the fundamental role that freedom of expression and information plays within a democratic society. There can be no democratic society where the right to freedom of expression is not respected. Democracy relies heavily on broad freedom of expression, not simply because the right itself must be respected, but also because freedom of expression and information is vital in order to guarantee respect for the other basic rights. /21

Both the Commission and the Court have repeatedly pointed up how crucial freedom of expression and information is to the growth of democracy. In one of its advisory opinions, the Court specifically held that freedom of expression and information "is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. (…) 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." /22  The Court has also held that inasmuch as freedom of expression, information and thought is the cornerstone of the democratic system and the very basis of public debate, the American Convention attaches "an extremely high value" on this right and reduces to a minimum any restrictions on it. As the Court has held, it is in the interest of "the democratic public order inherent in the American Convention" that every person’s right to freely express oneself be "scrupulously respected." 

Quoting the Inter-American Court, the Commission wrote that "this constant reference to democracy in Article(s) 29 and 32 indicates that when provisions of the Convention are critical to the ‘preservation and functioning of democratic institutions’, the ‘just demands of democracy must guide their interpretation." Hence, "the interpretation of the Article 13(2) restrictions on freedom of expression must be ‘judged by reference to the legitimate needs of democratic societies and institutions,’ precisely because freedom of expression is essential to democratic forms of governance." /23

The importance that the Inter-American System attaches to freedom of expression and information is evident from the fact that the American Convention is more generous in its guarantee of freedom of expression than the European Convention and the International Covenant of Civil and Political Rights. Similarly, the European Court has held that freedom of expression and information should apply not just to favorable information and ideas but also to those that "offend, shock or disturb" and that these "are the demands of pluralism, tolerance and broadmindedness without which there is no democratic society." /24

It is against this backdrop of sweeping protection and minimum restriction as a pillar of a democratic society that laws governing the right to freedom of expression must be evaluated. A series of doctrines are discussed below. Their inclusion in the member States’ legal systems will represent a significant step forward in the protection of freedom of expression. The member States need to begin to examine, discuss and adopt new mechanisms that allow for broader protection of freedom of expression and information. A reference is also made to the concept of truthful information recently included in Venezuela’s Constitution. 

1. The Dual System of Protection: Public Persons and Private Persons

The right to freedom of expression and information is one of the main tools available to society for exercising democratic control over the individuals responsible for matters of public interest. Therefore, to abridge freedom of expression and information is to abridge or diminish the citizens’ control over their public officials and to transform democracy into a system where authoritarianism can find fertile ground for imposing itself upon the will of society.

 Representative democracy requires that public officials, or all those involved in public affairs, be responsible to the men and women they represent. In a democratic society, citizens delegate the administration of public affairs to their representatives. But the citizenry retains control and must have an open right to monitor, with as few restrictions as possible, their representatives’ conduct in the public affairs. 

Full and effective control of the management of public affairs is necessary to preserve a democratic society. Persons in charge of managing public affairs must be less guarded from criticism than the average private citizen not involved in public affairs.

 The Commission wrote that: 

The Commission then added the following: 

The European case law, like that of the United States, shares this principle of a distinction in the level of protection granted to public and private persons. In the Lingens case, the European Court held that "the limits of acceptable criticism are … wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance." /27

The first implication of this dual system of protection is the obligation incumbent on the member states to repeal their desacato laws to bring them into line with Article 13 of the American Convention./28  The Commission has said that it understands that, "the State’s use of its coercive powers to restrict speech lends itself to abuse as a means to silence unpopular ideas and opinions, thereby repressing the debate that is critical to the effective functioning of democratic institutions. Laws that criminalize speech which does not incite lawless violence are incompatible with the freedom of expression and thought guaranteed in Article 13, and with the fundamental purpose of the American Convention of allowing and protecting the pluralistic, democratic way of life." 

In his first Annual Report, the Special Rapporteur called upon the member States to repeal the contempt [desacato] laws inasmuch as they are incompatible with the objective of a democratic society, which is to nurture public debate, and are contrary to Article 13 of the American Convention. 

Another consequence of the dual system of protection is the need for the member states’ legislation to incorporate the doctrine of "actual malice," which is explained below. Here again, many of the countries of the hemisphere have slander and libel laws that need to be amended. 

a. Actual Malice /29

The dual system of protection means, in practice, the imposition of civil damages alone in cases where false statements made with "actual malice" are present. /30   In The New York Times Co. v. Sullivan, the United States Supreme Court ruled that: "The constitutional guarantees require … a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" –that is, with the knowledge that it was false or with reckless disregard of whether it was false or not." /31

This doctrine was enshrined in Vago v. Ediciones La Urraca S.A., /32 a case dealing with damages, in which Argentina’s Supreme Court of Justice ruled that, "those that deem themselves affected by false or inaccurate information must prove that the person who produced said information acted with malice." /33

The Commission’s report on contempt [desacato] laws does not make specific mention of the principle of "actual malice." However, its acceptance of the principle can be inferred from the fact that the Commission recognizes that public officials are subject to closer scrutiny and discards "exceptio veritatis" (defense of truth) as an adequate defense for duly guaranteeing freedom of expression. 

The Commission’s reference to the fact that public officials and public figures are subject to closer scrutiny was explained in the previous section. As for the principle of exceptio veritatis (defense of truth), which is to say the possibility of proving the veracity of statements made, the Commission concluded that this was not sufficient: 

 Finally, when the information that prompted a lawsuit is a value judgment rather than a statement of fact, there can be no liability. One of the requirements for liability is that the falsehood of the information can be proved or that the respondent published a statement that he or she knew was false or very likely false. If the information is a value judgment, it cannot be shown to be either true or false, since it is an entirely subjective assessment not susceptible of proof. In this regard, the Commission has said: 

b. Decriminalizing Libel and Slander Laws

If Article 13 and the report on desacato laws are interpreted within the democratic context referred to at the beginning, it then becomes necessary to amend those laws whose primary purpose is to protect the honor of persons (commonly known as slander, libel and defamation laws). In the report on desacato laws, indirect reference is made to this type of legislation: 

 While the Commission’s report concerns to the desacato laws in particular, it is also true that slander and libel laws are often used not so much to protect a person’s honor as to attack –or, better said, silence- speech that is considered critical of government, as the Commission has noted. 

As for criminal law, the Office of the Rapporteur recommends to derogate slander and libel laws, when the circumstances described above are present. Again, decriminalization of these offenses is consistent with the Commission’s interpretation of Article 13 in the Report on Desacato Laws. Criminalization of speech targeted at public officials is disproportionate when compared to the important role that free speech and information play within a democratic system. The Commission wrote that: 

The Commission added the following: 

 Therefore, the interpretation of Article 13 of the Convention and the Report on Desacato Laws according to the democratic system that the Convention guarantees, the Special Rapporteur concludes that to ensure that freedom of expression is properly defended, the States should discuss the convenience of incorporating the distinction between public and private persons in their laws protecting honor. The acceptance of this doctrine requires repealing the desacato laws, to incorporate the principle of "actual malice," and decriminalizing slander and libel when they are used to protect discourse that is critical of government. 

Faithful reporting 

According to this principle, when information is faithfully reported, no liability or responsibility is incurred, even if the information is incorrect or can damage someone’s honor,. This principle can be traced back to a 1796 case in the United Kingdom, Curry v. Walter. In that case, Judge Eyre ruled that although the subject matter contained in the newspaper could be truly prejudicial to the person of the magistrates, because it was an account of something that transpired in a public court of law, its publication was not illegal. /40

The Spanish Constitutional Court has also relied on this doctrine. The Director of the newspaper Egin was convicted of advocacy of criminal conduct for having published communiqués from the ETA terrorist organization. The Spanish Constitutional Court held that "the courts should have relied on the interpretation most favorable to the basic right and to its effects on the related norms of criminal law. Such an interpretation would have dictated the journalist’s right to impart, and his readers’ right to receive, complete and truthful information. It is an objective, institutional guarantee. For the journalist to assert that right, his conduct must be devoid of any criminal intent; instead, he must confine himself to simply reporting the information, even though the content of that information be criminal in nature." In a ruling on a case involving La Voz de Asturias, the Constitutional Court held that "(…) as this is a case of imparting information, where the medium has confined itself to faithfully reporting statements entirely alien to it, the medium cannot be regarded as the ‘author of the news’. It cannot be held responsible for the authorship of news not attributable to it." /41

In Argentina this is known as the Campillay principle, because of the decision in a suit that the actor Campillay brought against the newspapers La Razón, Crónica and Diario Popular. The three newspapers had carried stories that incorrectly reported that the actor was involved in the incident. The Argentine Supreme Court recognized that the publications had merely transcribed an official but incorrect Police press release that implicated Campillay in a number of crimes. The decision cleared the newspapers of all any wrongdoing. 

This principle is also based on the importance of freedom of expression and information for a democratic society. Democracy requires a public, free-flowing and wide-ranging debate. Publishing information supplied by third parties must not be restricted by threatening the publisher with holding him or her responsible for reporting statements made by others. The contrary, will abridge every person’s right to be informed. 

3. Freedom of information 

The Office of the Rapporteur is conducting a study on habeas data and on the freedom to access official information./42  The goal is to analyze the legislation and practices within the hemisphere and their compatibility with the American Convention on Human Rights. In November 1999, the Special Rapporteur informed the member States of this initiative and requested information to determine what their laws, jurisprudence and practices were in this regard.

Under Article 13 of the American Convention on Human Rights, the right to freedom of thought and expression includes "freedom to seek, receive, and impart information and ideas of all kinds." The Inter-American Court has held that "it can be said that a society that is not well informed is not a society that is truly free." /43  It has also stated that "For the average citizen it is just as important to know the opinions of others or to have access to information generally as is the very right to impart his own opinion." /44

As to the scope of freedom of expression and information, the Court wrote the following:

 The right to access to official information is one of the cornerstones of representative democracy. In a representative system of government, the representatives should respond to the people who entrusted them with their representation and the authority to make decisions on public matters. It is to the individual who delegated the administration of public affairs to his or her representatives that belongs the right to information. Information that the State uses and produces with taxpayer money. 

Procedures that ensure access to information held by the government is one way to monitor state governance and one of the most effective means of combating corruption. The absence of effective control can "imply activity utterly inimical to a democratic State and opens the door to unacceptable transgressions and abuse." /46 Guaranteeing access to official information helps to increase transparency in government affairs and thus serves to reduce government corruption.

 It is important to note that while access to government information is a basic right of individuals, the exercise of that right is not absolute. /47  Article 13.2 of the American Convention provides for certain restrictions. The general principle that official information is public in nature is subject to limitations when there is some interest at stake that requires that the information be kept confidential. These restrictions are few, however, and must be expressly stipulated by law. They generally apply to information related with national security and public order. 

One important aspect of the right to information is the petition of habeas data, whereby any person may have access to information about himself or his property contained in public or private databases or records and, when necessary, may update or correct it. This petition is becoming increasingly important with the introduction of new communication technologies like the Internet. With the growth of these technologies, both the State and the private sector will have rapid access to a vast amount of information about the individuals. At the same time, the accelerated pace at which the information available on the Internet is growing makes the existence of channels by which to access that information all the more imperative should it be necessary to correct inaccurate or out-of-date information in electronic data banks.

 In addition to the recognition of the right of access to information and habeas data, there must be a rapid and effective procedure so that this right can be fully exercised. In many States an administrative bottlenecks makes it difficult to obtain information, new mechanisms should be incorporated that will make simple and inexpensive for applicants to request information. /48

A study comparing the laws in this hemisphere reveals that initiatives aimed at full recognition of the right to access to information held by the government and the petition of habeas data have been developed. In Argentina, for example, Article 43 of the Constitution recognizes habeas data and reads as follows: 

Argentine jurisprudence has affirmed that the petition of habeas data recognized in Article 43 of the Constitution has a twofold purpose:

Article 200, subparagraph 3 of Peru’s Constitution expressly recognizes the petition of habeas corpus as a constitutional guarantee: 

In November 1998, the Autonomous Government of the City of Buenos Aires, Argentina, passed Law No. 104, recognizing every person’s right to request information in the city government’s possession. Article 1 reads as follows: 

Provisions relating to access to information held by the government are found elsewhere in Peru’s Constitution, under Article 2, number 5: 

 Canada’s Access to Information Act provides that records held by federal government institutions are to be available to the public. Sections 14 to 16 stipulate the exceptions to the general principle of open access to information held by the federal government. Those exceptions basically concern information on international affairs and defense, law enforcement and investigations, and information whose disclosure would be injurious to the conduct of government of federal-provincial affairs. 

Section 7 of Canada’s Privacy Act protects personal information held by the government. This law restricts unauthorized disclose of that personal information. Under the law, personal information can only be used for the purpose for which it was compiled. 

In the United States, access to information in the federal government’s possession is also guaranteed. Originally passed in 1966, the Freedom of Information Act recognizes the right to obtain public information, by guaranteeing that citizens shall have the right to access to information about them held by the federal government. The government is permitted to charge for the costs of searching, retrieving and copying the information. 

The law upholds the principle that all records of federal agencies must be accessible to the public unless one of the specific exceptions obtains. Section 552(b) lists nine cases in which government agencies are authorized to deny access to information contained in their databases. Those reasons include the following: 1) information that is confidential for reasons of national defense or international policy; 2) information exclusively related to internal personnel rules and practices of government offices; 3) information specifically exempted from disclosure by statute; 4) trade secrets and commercial or financial information obtained from a person and privileged and confidential; 5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency; 6) personnel, medical and similar files the disclosure of which would constitute an unwarranted invasion of privacy; 7) information for law enforcement purposes; 8) information obtained for purposes of regulation and supervision of financial institutions, and 9) geological and geophysical information related to oil wells. 

If the information is denied, the applicant may file an appeal with the agency. Should the agency again refuse to supply the information without giving just cause, the applicant can appeal to the federal courts, which can order that the information be released and even impose sanctions. 

Finally, the special Rapporteur would like to endorse the principles the "Public´s Right to know: Principles on Freedom of Information Legislation", developed by the non-governmental organization Article XIX. These principles establish the fundamental basis and criteria to secure an effective access to information. /50

4. The concept of a right to truthful information /51

The so-called right to truthful information has been a subject of intense debate across the hemisphere in response to concern and alarm brought on by the press being used as a sensationalist medium or to disseminate news that is not always correct or truthful. 

Because freedom of expression and information is so vital to the normal functioning of a democratic society, international laws have accorded it broad protection, with a few clearly stated limitations. This ensures clarity regarding the limitations that are allowed and prevents interpretations that could jeopardize the exercise of this very basic right. 

Article 13 of the American Convention on Human Rights, Article 19 of the Universal Declaration of Human Rights, and Article 19 of the International Covenant of Civil and Political Rights clearly reflect the interest in according this right broad protection. As can be seen by reading these articles, no preconditions are placed on freedom of expression and information. All these instruments simply refer to freedom of expression, information and/or opinion. 

Under Article 13 of the American Convention, the responsibilities stemming from the exercise of the right to freedom of expression are ex post fact. Prior censorship is expressly prohibited. /52

Any adjective used to qualify the information would limit the volume of information protected by this right. For example, the right to truthful information would not protect information that, by contrast to truth, we would label erroneous. Hence, any information that might be considered erroneous –a matter that will be discussed at greater length later in this report– would not be protected by that right. However, a correct interpretation of the international norms, especially Article 13 of the Convention, compels us to conclude that the right to information covers all information, including information that we might deem "erroneous". /53

First, it is impossible to determine, with absolute certainty, the veracity of most information produce by the individuals. By requiring truthful information, this principle is premised on the notion that there is some single, indisputable truth. One must be careful here to draw a distinction between facts that can be demonstrated, and value judgments. In the latter case, the information cannot be said to be either true or false, and cannot be demonstrated with factual proof. The veracity test might mean almost automatic censorship of any information that cannot be proven, which would virtually do away with any political debate that relies primarily on purely subjective ideas and opinions. 

Even in those cases where the information concerns concrete facts that could in all likelihood be factually proven, it is impossible to require the veracity of the information, since any single fact could undoubtedly lend itself to a number of markedly different interpretations. In this regard, John Stuart Mill said that "Even in natural philosophy, there is always some other explanation possible of the same facts (…)". /54   It must be proven because the other theory cannot be the true one, and as long as this is not shown and as long as we do not know how it was proved, we cannot understand the bases of our opinion. But when we turn to issues that are infinitely more complicated, morals, religion, politics, social relations, and issues of life in general, three quarters of the argument on any opinion discussed is to disprove the arguments that favor any different opinion. 

Assuming, for the sake of argument, that one could determine the truth of everything, debate and the exchange of ideas are the best way to go after that truth. Requiring from the outset that only truth be told obviates any possibility of the debate needed to arrive at that truth. Paradoxically, this principle –which holds that only truth must be reported- also precludes or impairs the exchange of ideas and opinions that are part of the quest for the truth. /55

The possibility of penalties for reporting information that an open debate might prove incorrect, will lead to self-censorship to avoid possible penalties. The entire citizenry will suffer, because they will not be able to have the truth produce by the exchange of ideas. Absolute certainty will frequently be impossible; but just the possibility of making information public, sparks the debate that leads to the truth and the benefits to all mankind. 

The Inter-American Court of Human Rights raised this point in Advisory Opinion OC-5/85 on compulsory membership in an association prescribed by law for the practice of journalism: 

Thus, the effect that this principle has is precisely opposite to the one that its proponents argue as the basis for its application. In other words, the search for truth in information would be severely hampered by inhibiting the free flow of information for fear of possible penalties. The right to freedom of information also protects all the information that we have labeled "erroneous". In any case, under international law and the most modern jurisprudence, only information that is shown to be erroneous and produced with "actual malice" could be penalized. Even in that case, the sanction should be ex post facto, as information can never be subject to prior censorship. 

C. Women and freedom of expression 

The Office of the Rapporteur for Freedom of Expression would like to stress the relationship that exists between the situation of women and its impact on the right to freedom of expression and information. The Commission has noted that the member States must endeavor to eliminate any type of measure that discriminates against women leaving them less than full and equal partners in their country’s political, economic, public and social life. The American Convention on Human Rights recognizes the right to equality and nondiscrimination as pillars of strong and healthy democratic systems in the hemisphere. /57

Although the situation of women has undergone significant change, as they have acquired rights and protections under domestic laws and international human rights treaties/58, de facto and de jure discrimination against women has not stopped. /59 In its Report on the Status of Women in the Americas /60, the Inter-American Commission on Human Rights urged the member States to amend or abolish all laws that have the purpose or effect of discriminating against women, to work toward eliminating the practices and structural barriers standing in the way of women’s full assimilation into national life, and to allocate adequate resources to achieve those ends. /61

Full exercise of the right to freedom of expression and information is essential to ensuring that women’s human rights are protected and respected. Full and unrestricted exercise of this right will allow women to play a greater and more active role in denouncing abuses and in finding solutions that mean greater respect for all their basic rights. Silence is the best ally for perpetuating the abuses and inequalities that have been the lot of the women across this hemisphere. 

There are a number of reasons why women suffer inequality in the hemisphere. This report will mention those that have a direct bearing on exercise of the right to freedom of expression and information. They are women’s inequality in educational opportunities, violence against women and the need for women to become more politically involved. /62

The lack of equal access to education is a direct violation of women’s right to seek and receive information. In the more impoverished sectors of society, a woman’s role has been largely confined to the home, thus diminishing the opportunity she has to receive an education that would increase her chances of participating in public life and seeking employment in a variety of areas. /63

Statistics from the Social Development Division of the Inter-American Development Bank’s Sustainable Development Department reveal major discrepancies between male and female literacy rates across the world: "In 1990, only 74 women knew how to read and write for each 100 men with those skills. . . . Throughout the world, 77 million girls aged between 6 and 11 do not attend primary school, a level much higher than the corresponding figure of 52 million for boys." 

Violence or fear of violence also curtails women’s freedom of expression and information./64 Intimidated by the violence, women frequently opt not to report incidents of violence to the authorities, remain in seclusion and do not participate in society. /65  Estimates are that in this hemisphere, anywhere between 30 and 70 percent of adult women with partners are subjected to psychological or physical abuse. /66 At the same time, in some States of the hemisphere adequate measures have not been taken to protect women from violence and prevent it. In some instances, cases of domestic violence reported to the police have been treated as minor offenses, and attempts have been made to dissuade the women from reporting future abuses on the grounds that these are private matters. In some cases, the police have refused to act on the complaints or to offer precautionary measures to protect the victim./67  Such actions and attitudes relegate women to a subordinate and degrading role, silencing their ability to express themselves and leaving them helpless to take action, thus perpetuating the circle of violence, abuse and discrimination. /68

It is by active political participation in the democratic institutions of the State that freedom of expression and information plays a basic role in bringing about the needed changes within institutions and society in general, the changes that will improve the lot of women in the hemisphere. This is why it is crucial that greater political participation for women be assured. 

As long as women do not play an equal role in political life, democratic, pluralistic societies will never prosper and intolerance and discrimination will only worsen. Women’s inclusion in communication, decision-making and development processes is crucial if their needs, opinions and interests are to be factored into policies and decisions. Women’s access to greater political participation in places where decisions are made will further respect for other basic rights, thereby ensuring the advocacy and defense of policies, laws and practices that protect the rights and guarantees that affect them. /69

As the Commission pointed out in its Report on the Status of Women in the Americas, there is a sense in the region that for true democracy, women must have a greater role in decision making, and that access to a country’s political life does not end with nondiscriminatory exercise of the right of suffrage. /70  The member States are urged to encourage women’s participation in political life and decision-making in the public and private arenas. Unless and until all members of society participate fully, freedom of expression and information will be in jeopardy. 

D. The Internet and freedom of expression 

The Rapporteur for Freedom of Expression believes that the Internet is an instrument with the capacity to fortify the democratic system, assist the economic development of the region’s countries, and strengthen full enjoyment of freedom of expression. The technology of the Internet is without precedent in the history of communications and it allows rapid access of and transmission to a universal network of multiple and varied information. 

The Internet is a medium with great possibilities because it allows individuals to participate openly in discussions and exchanges of information on issues of interest to them. The global scope of the Internet allows people to communicate and obtain information immediately, regardless of geographical borders and distinctions based on race, sex, religion, or social origin. 

Maximizing the population’s active participation through the use of the Internet furthers the political, social, cultural, and economic development of nations by strengthening democratic societies. In turn, the Internet has the potential to be an ally in the promotion and dissemination of human rights and democratic ideas and a major tool in the actions of human rights organizations, because of its speed and breadth which allow it to immediately transmit and receive information on situations affecting fundamental rights in different regions. 

The community of American states has explicitly recognized the protecting of the right of freedom of expression in the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights. /71  These instruments allow a broad interpretation of the scope of freedom of expression. Internet content is covered by Article 13 of the American Convention on Human Rights.  The Rapporteur urges the member states to refrain from implementing any sort of regulation that would violate the terms of the Convention. 

E. Freedom of expression and information in some member states 

Restrictions and threats to freedom of expression and information are present in virtually every State of this Hemisphere. Absolute respect for freedom of expression and information is as impossible as absolute respect for other fundamental rights. Nevertheless, States in which the restrictions on freedom of expression and information are part a systematic campaign by authorities to silence criticism of the government, must be distinguished from those in which the restrictions and threats to freedom of expression and information are not symptomatic of systematic persecution by government authorities. In the latter cases, the democratic institutions themselves can find ways to put a stop to such attacks and threats. 

Both situations are of concern to the Rapporteur. A State is responsible for the abuses or acts committed. Of the two, however, systematic persecution on the part of government authorities is by far the more disturbing because it threatens other fundamental rights and the preservation of the democratic system of government. 

In line with this, the Rapporteur distinguishes three main categories of restrictions on and threats to freedom of expression: 1) States without freedom of expression; 2) States where freedom of expression is severely limited owing to systematic persecution by government authorities to silence their critics; and 3) Other cases.

 The Office of the Rapporteur is most concerned with the first two categories, because of the serious implications such situations have for the existence of a democratic society. The cases outlined below are not an exhaustive list of the complaints that this Office received in 1999. 

First of all, mention must be made of some cases of progress made by states in defending and protecting freedom of expression. 

Progress 

Panama 

The Annual Report for 1998 stated that there were a number of anachronistic laws in Panama that constituted a legal obstacle to the full exercise of the right to freedom of expression. Public officials frequently used those laws to silence their critics and to harass journalists and the press in general. 

The great majority of these laws are still in force in Panama and public officials continue to use them against journalists. /72  Some of the laws restricting freedom of expression and information are: Article 33 of Panama’s Constitution, Articles 202 and 386 of the Judicial Code, Article 827 of the Administrative Code on Correctional Penalties, Articles 307 and 308 of the Penal Code. All these are, in one way or another, a contempt law. Article 903 of the Administrative Code, Cabinet Decree No. 251 of 1969 and Article 177 of the Electoral Code allow censorship. Certain articles of 1978 Law 67 regulate journalistic activities by requiring that those practicing journalism fulfill certain requirements set by the Ministry of Government and Justice. 

The new Administration of President Mireya Moscoso has expressed its willingness and has signaled its intention to make it possible to repeal these laws. Two ad hoc committees have been appointed, composed of lawyers and journalists, to study the laws that curtail freedom of expression and information and prepare bills for their repeal or amendment. 

In December 1999, the ad hoc committees introduced their first two proposals, which lead to repeal of the laws (the Rapporteur is awaiting the texts for the proper citation). 

The commitment, effort and drive that the Administration of President Mireya Moscoso has put behind the goal of repealing or amending the laws that restrict freedom of expression and information are laudable. The Office of the Special Rapporteur is very gratified that two laws have already been repealed. However, the repeal of these two laws is a first step but does not completely dismantle the body of laws that curtail freedom of expression. Any amendment or legal initiative related to freedom of expression and information must conform to the parameters set in Article 13 of the American Convention on Human Rights. 

Argentina

 The Argentine Senate is now examining a bill to amend the libel and slander law. /73  The Office of the Rapporteur is urging continued action on this bill, which can serve as an example to the other nations of the hemisphere and become one of the most important advances for freedom of expression and information in the years ahead. 

1. Restrictions and threats to freedom of expression 

a. States without freedom of expression

 Cuba 

Freedom of expression does not exist in Cuba. Unless and until changes are introduced to democratize the country and the other basic rights are recognized, freedom of expression and information will not grow in Cuba. /74

Many laws in Cuba restrict freedom of expression and information. The Cuban Constitution provides that no means of communication can be the target of private appropriation, thus "ensuring that all media will be used exclusively to serve the proletariat and the interests of society." The government censors all foreign material entering the island and arbitrarily refuses entry to foreign journalists. /75

Chapter VII of the Cuban Constitution, on "Basic Rights, Duties and Guarantees" recognizes freedom of expression, information and the press, but only "in accord with the ends of a socialist society." Freedom of artistic expression and information is also limited, as the Constitution stipulates "that artistic freedom exists only insofar as its content is not counter-revolutionary." The Constitution also establishes the legal grounds for censorship, which is that only the State has the authority to determine whether oral or written expression is counter-revolutionary.

 The Cuban Constitution also states that "none of the freedoms accorded to citizens may be exercised to challenge the Constitution and laws, or the existence and purposes of a socialist State, or the decision of the Cuban people to build socialism and communism. Violation of this principle is a punishable offense." /76

In February 1999, Law No. 88 was enacted, called the Law on Protection of the National Independence and Economy. This law makes it a crime to impart, search for or obtain subversive information or to bring subversive materials into the country, reproduce them or circulate them. It also criminalizes collaboration –either direct or through third parties- with radio or television transmitters, newspapers, magazines or other mass communication media for the purpose of disseminating subversive materials. /77  This law establishes penalties of up to 20 years imprisonment for the authors of these acts and their accomplices. Cuban authorities are using this law to threaten journalists if they persist in activities with which the State is uncomfortable. /78

Cuban authorities frequently use laws on the books criminalizing certain behaviors, such as enemy propaganda /79, contempt, state of danger, operation of clandestine printing presses, circulation of unauthorized news, insult to fallen heroes and acts committed against the security of the State, to silence critics and dissidents and to restrict to the maximum freedom of expression and information.

 In 1999, the Cuban government tried a number of dissidents and detained more than thirty independent journalists and activists. On March 15, 1999, a court convicted four leaders of the Grupo de Trabajo de Disidencia Interna (GTDI) [Internal Dissidence Working Group] for "acts against the security of the State" and sentenced them to prison. In 1997, this group had published the document La Patria es de Todos, where it analyzed the Cuban economy, suggested amendments to the Constitution, debated human rights issues and criticized the fact that Cuba recognized only one political party. /80

The following persons are also serving prison sentences: Bernardo Arévalo Padrón, sentenced to six years in 1997 for the crime of speech offensive to President Fidel Castro and Vice President Carlos Lage; Manuel Antonio González Castellanos, arrested in October 1998 and sentenced to two years and six months in prison, and Leonardo Varona González, arrested in October 1998 and sentenced to sixteen months in prison, both for speech offensive to President Fidel Castro; and Jesús Joel Díaz Hernández, Director of the Cooperativa Avileña de Periodistas Independientes, arrested on January 18, 1999, and sentenced to four years’ imprisonment for the crime of "posing a danger to society." 

In September 1999, the Rapporteur received information to the effect that the Cuban government had refused journalist Raúl Rivera, founder and director of the Cuba Press independent news agency, permission to travel to the United States. He was on his way to receive the prestigious María Moors Cabot award that New York City’s Columbia University bestows each year. That same month, journalist Angel Pablo Polanco from the independent news agency Cooperativa de Periodistas Independientes was arrested at his home by State police and his telephone line was cut. The journalist, known for his coverage of the activities of human rights organizations, was accused of participated in illegal activities. 

According to information received, on November 10, 1999, during a human rights demonstration staged on the occasion of the Ibero-American Summit in Havana, journalist Angel Pablo Polanco from the Cooperativa de Periodistas Independientes was arrested again, along with journalist Omar Rodríguez from the Agencia Nueva Prensa. That same day, journalists Aurora García del Busto from the Cooperativa de Periodistas Independientes, Ohalis Victores from Cuba Voz and José Antonio Fornaris from Cuba Verdad were placed under house arrest. 

In December 1999, journalists Juan González Febles, Adela Soto Alvarez, María del Carmen Carro and Santiago Martínez Trujillo were detained in an apparent maneuver by Cuban authorities to prevent them from reporting on an anti-government protest demonstration. Six other journalists were placed under house arrest: Meri Miranda, Osvaldo de Céspedes, María de los Angeles Gómez, Amarylis Cortina, Ricardo González and Alida Viso. 

The cases mentioned here clearly illustrate that freedom of expression and information does not exist in Cuba. The Special Rapporteur urges the Cuban authorities to change their posture with regard to an independent press and dissident voices and to recognize the Cuban people’s right to freedom of expression and information. 

b. States where freedom of expression is severely limited 

Peru 

The Special Rapporteur holds that Peru is lacking the guarantees needed for full exercise of the right of freedom of expression. /81 Between the in loco visit in November 1998 and the publication of this report, there was no progress indicating a positive trend vis-à-vis freedom of expression. 

In a number of its reports, the Commission has stated that the judiciary in Peru has little independence and autonomy. As a consequence, there is no effective judicial control of the constitutionality and legality of the government’s acts. This leads to illegalities and abuses of authority. /82

Given this situation, the independent press is playing a vital role in Peru by reporting the authorities’ irregularities, bringing to light acts that elude the scrutiny of democratic control mechanisms and whose authors find their allies and accomplices among the ranks of the authorities. 

As a consequence of these reports, the media and independent journalists and opposition politicians have been the targets of a systematic plan of harassment by intelligence services and police. The attacks have range from threats and smear campaigns to serious human rights violations. Compounding the harassment plan is the judiciary’s passive attitude, as it refrains from conducting serious and effective investigations into the abuses and crimes committed against journalists. The judiciary has also allowed itself to be used as a means to harass and intimidate investigative journalists. 

One of the most frequently attacked media outlets in Peru is La República, a newspaper with a reputation as one of the government’s sternest critics. Its publisher, Gustavo Mohme Llona, has received death threats on several occasions, and both he and the newspaper he heads are and have been the target of a campaign clearly intended to offend and tarnish the newspaper and its team of journalists. 

Other journalists of the newspaper have also been threatened. The journalist Angel Páez Salcedo, head of the investigative unit of the newspaper and correspondent for Clarín of Argentina, received a death threat in December 1998. As a journalist, he reported on corruption involving Peru’s government officials and military leaders. 

Attacks on La República continued in October 1999 when the newspaper received 150 offensive faxes that jammed its telephone lines. It also received numerous threatening and insulting calls targeting the publisher and the editor-in-chief of the newspaper, Blanca Rosales.

 The campaign against these newspapers was also carried on, in late 1998, via Internet. The web page was updated from Peru by the so-called Asociación Pro Defensa de la Verdad (APRODEV) (Association for the Defense of the Truth) with material similar in content and tenor to the editorials of certain of the above-mentioned anonymous lampoon media. 

In April 1997, Television Channel 2 broadcast news on torture committed by members of the Peruvian Army Intelligence Service. In July 1997, the Peruvian government passed a resolution annulling Mr. Ivcher’s citizenship. Subsequently, in August, 1997, a judge suspended the ownership rights of Baruch Ivcher as president of the television company, prohibited the transfer of shares, and revoked the appointment of Ivcher as president of the firm. 

In 1998, the Inter-American Commission on Human Rights issued a report on the case, and found that the Peruvian Government had violated the rights under the American Convention on nationality, due process, freedom of expression, property, and effective judicial protection to the detriment of Mr. Ivcher. Consequently, the Commission filed the case before the Inter-American Court, requesting that it order the Peruvian Government to restore to Mr. Ivcher Peruvian nationality and all the rights and prerogatives of which he had been arbitrarily deprived. 

The Office of the Rapporteur also received information that police or army agents would go to the media to request information on the political affiliation of the owners, journalists, and activities of the various media, and also to ask them for copies of programs they broadcast. For instance, in August 1999, in Huancavelica, the Military Commander with Political Authority in the region (Jefatura Político Militar) ordered the media in the area to submit the news content of their radio programs. The memorandum addressed to media managers instructed them "… to make arrangements to send to the Office of the Military Commander with Political Authority, on a daily basis, and beginning from today, information transmitted by his/her radio station. On orders from our superiors, all information broadcast in this emergency zone must be monitored." A few days later, the Command Headquarters of National Security Sub-Zone for Center No. 8 issued a press release in which it reported that Captain Adolfo Delgado Ruíz had been dismissed and punished, and that charges had been brought against before the Army’s Second Judicial Zone. 

Similarly, the Rapporteur received information to the effect that the news program Radio Tigre in Iquitos had been arbitrarily shut down. The report stated that the executives of the radio station were under pressure from the Army who told them to order their employees to stop reporting the irregularities committed by high-ranking members of the Army. 

The Rapporteur received information to the effect that in March of 1999, a number of journalists from Radio Marañon were threatened in a variety of ways. For example, two men in hoods shot journalist José Luis Linares Altamirano in his home in Jaén. Reporter Homero Marín Salazar was the victim of an assault in his own home. The director of the radio said that he believed these attacks were part of an intimidation campaign possibly being waged by local groups that were uncomfortable with the programming. 

In September 1999, Juan Sánchez Oliva, director of the radio news program Quasar en la noticia in the city of Huaraz, complained that he and his family were the victims of constant threats and aggression. Similarly, Angel Durán, a colleague of Sánchez Oliva, received phone threats that month and in November was shot in the right thigh while on his way to interview the mayor of Alija. The Special Rapporteur had an opportunity to speak by phone with the journalist in the hospital and offered him his support. Journalist Juan Sausa Seclén, a correspondent for La República and journalist for Radio Marañon, also received death threats. 

In November 1999, the Commission received a request asking that precautionary measures be ordered for the journalist Guillermo Gonzales Arica, that had been harassed by State agents and agencies because of his journalistic activities. On November 21, the Commission asked the Government of Peru to grant precautionary measures to journalist Guillermo Gonzales Arica. 

c. Other cases 

As mentioned earlier, attacks on and threats to freedom of expression and information are present in all the member States. The cases presented here are hardly representative of all the problems in the hemisphere. Only the most disturbing of the cases reported to the Rapporteur are mentioned here. 

In Colombia there are cases of journalists being murdered, kidnapped, assaulted and threatened. In Chile, a restrictive law is on the books that some authorities use, as happened with the censorship of a book in 1999. In the Dominican Republic, there are laws that require an identification card for journalist activities. In Venezuela, the concept of truthful information was introduced in the Constitution. These governments have repeatedly emphasized their commitment to making every effort possible to recognize and protect the right to freedom of expression. There are bills before the Chilean legislature, introduced by the executive branch and by members of the legislature, to amend some of the laws now on the books that effectively abridge freedom of expression. 

Colombia 

As the armed conflict escalated in Colombia in 1999, so did there the violence and intimidation against journalists and the media. 

The violence targeted against journalists and the media left five journalists dead, killed while practicing their profession. Others have been kidnapped and/or threatened by members of armed dissident groups. According to reports received, fifteen journalists working for major media outlets were forced to flee the country in fear for their lives. But this figure is compounded by the number of journalists who leave the country or move, but file no complaint with the Office of the Rapporteur. 

While at home in March 1999, Plinio Mendoza, a columnist for the newspaper El Espectador, received a package containing a bomb, which was quickly deactivated. The armed dissident group called Ejército de Liberación Nacional (ELN) claimed responsibility for the attempt and described Mendoza as a propaganda machine for State and paramilitary violence. 

In March and August 1999, journalist Jaime Orlando Aristizabal was arrested, threatened with death and stripped of his journalism material by the Audodefensas Unidas de Colombia (AUC), because of his journalistic work for the RCN chain. In 1994, the journalist was the target of similar acts of violence and was forced to resign from his job at the Notipacifico television news. Aristizabal had reported these acts of violence to State security agencies, but got no response. 

On April 11, 1999, Hernando Rangel Moreno, director of the newspaper Sur 30 Días and a radio broadcaster, was killed. Jaime Garzón, a popular journalist and humorist, was killed on August 13. Guzmán Quintero Torres, editor-in-chief of the regional paper El Pilón and a news correspondent for Tele Caribe, was killed on September 16. Rodolfo Luis Torres, correspondent for Radio Fuentes in Sincelejo, was killed on October 21 and Pablo Emilio Medina Motta, a television cameraman, on December 4. /83

 In August 1999, flyers began to circulate in Bogota, Cali, and Medellín. In those flyers, the Ejército Rebelde Colombiano named three journalists and 21 intellectuals as enemies of the peace process in Colombia. The journalists mentioned were Alfredo Molano and Arturo Alape, columnists with El Espectador, and Patricia Lara, former owner of the weekly publication Cambio and a columnist for the Bogota newspaper El Tiempo. In early 1999, Molano had to leave the country after his wife was threatened by a leader of one of Colombia’s armed dissident groups. 

In September 1999, the National Television Commission censored the program Hechos y personajes, done by journalist Ramón Jimeno, on the grounds that the journalist’s profiles constituted a defense of criminal conduct. 

On October 26, 1999, Henry Romero, reporter/photographer for the Reuters news agency, was abducted by the armed dissident group that calls itself Ejército de Liberación Nacional (ELN), as he was covering the release of a group of people from the Church of María de Cali who had been abducted since May 31, 1999. He was abducted immediately and held in order to explain why he published photographs showing the face of various ELN members. He was finally released the city of Suárez, on November 3, after nine days in captivity. 

On October 29, 1999, seven journalists and a cameraman were abducted by an armed dissident group in the department of Bolívar. They were Wilson Lozano from Radio Caracol, Idamis Acero and Reynaldo Patiño of RCN Television, Blanca Isabel Herrera and John Jairo León of CM Noticias, Ademir Luna from Vanguardia Liberal, and Franklin Chaguala from Noticiero de las siete. One of the kidnappers spoke with the media to report the kidnapping and said that the journalists would not be released until they reported the real truth about the atrocities that paramilitary forces had committed against peasants in that region. The group was finally released on November 2. 

On November 12, 1999, seven journalists and their driver were abducted by armed dissident groups in the department of Cesar. They were David Sierra and Isabel Ballesteros from RCN Televisión, José Urbano Céspedes and Aldemar Cárdenas of Caraco Televisión, Pablo Camargo Alí from the newspaper El Pilón, Libar Gregorio Maestra from CM news and Edgar de la Hoz from the Bucaramanga newspaper Vanguardia Liberal. /84  After being held by their abductors for five days, the journalists were released. 

On November 14, 1999, a bomb containing six kilograms of dynamite exploded at a bus stop, close to the offices of the Cali newspaper El Tiempo. Three employees of the newspapers were wounded in the explosion, which did considerable property damage as well. The identity of the parties responsible for the attack is not known. 

In June 1999, an armed dissident group abducted Jorge Rivera Serna, a journalist with Cartagena’s newspaper Universal, and held him for one week. He was beaten and pressured to denounce other armed groups in his reporting. Later, Mr. Rivera Serna decided to leave Colombia, saying that he was retiring from the profession because there were no guarantees of professional growth. 

Similarly, journalist Juan Carlos Aguilar, television cameraman Javier Jaramillo, investigative journalist and columnist for the newspaper El Tiempo Alejandro Reyes Reyes and the deputy director of Noticiero de las Siete and columnist for El Tiempo Hernando Corral, left Colombia in 1999 after receiving numerous threats to their lives and/or their families. 

The Office of the Rapporteur received information indicating that the Office of the Attorney General of the Nation would create a special unit to investigate the murders of journalists. The Special Rapporteur urges the Colombian authorities to move forward with this important initiative, which can help see to it that the murders of journalists are investigated. 

Venezuela

 The Special Rapporteur is concerned about Article 58 of the new Venezuelan Constitution. It provides that "Everyone has the right to timely, truthful, impartial and uncensored information." As explained earlier in this report, information is not susceptible of preconditions or qualifiers. Requiring that information be truthful, timely, and so on is a kind of prior censorship expressly prohibited in the American Convention on Human Rights. 

Chile 

In June 1999, the Special Rapporteur visited Chile in response to an invitation to participate in several seminars on freedom of expression and information, in connection with the censorship of the book titled El Libro Negro de la Justicia Chilena by Chilean journalist Alejandra Matus. 

During his stay in Chile, the Special Rapporteur met with various officials, journalists, representatives of civil society and professors and found that some laws on freedom of expression were anachronistic. The Constitution still allows for film censorship and although prior censorship is prohibited in the Constitution, lesser laws allow it and are applied by the Chilean courts. The law also still criminalizes expression disrespectful of authority. These and other laws are incompatible with Article 13 of the American Convention and inconsistent with one of the objectives of a democratic and pluralistic society, which is to encourage public debate. 

During his visit to Chile, the Special Rapporteur got a commitment from a number of Chilean authorities that they would introduce bills to amend or repeal the existing legislation on freedom of expression and information that is restrictive and incompatible with the American Convention and other international human rights instruments. 

The laws that need to be repealed or made compatible with the American Convention owing to their frequent use are: /85

Article 6(b) of Law 12.927 on Internal State Security 

Articles 16 and 30 of the State Security Law 

Article 16 of the State Security Law is very akin to Article 6(b). It reads as follows: "If the press, radio or television are used to commit any crime against State security," in other words, if it is perceived as violating or harming the public order, the court hearing the case may suspend publication of up to ten editions of the newspaper or magazine and up to ten days of broadcasting of the radio or television station. In serious cases, the court can order immediate confiscation of any edition in which an abuse of freedom of expression punishable under this law is apparent.

This article gives very broad discretionary authority to the examining judge. He need only assert "some apparent abuse of freedom of expression" to order confiscation of publications or temporary shutdown of other media of expression. Judges are thus able to ban circulation of books before deciding whether the law itself has been violated. The law is, therefore, authorizing or allowing judges to engage in prior censorship of a publication. The Rapporteur was informed of some concrete cases in which this law was used. /87

Article 30 states that in any proceeding instituted pursuant to the State Security Law, "the examining judge shall first order that the printed materials, books, pamphlets, records, films, tapes, and any other object that may have been used to commit the crime be immediately compiled and turned over to the court." 

The Rapporteur is of the view that a law of this nature would have the same legal consequences as those described in the case of Article 16 of the State Security Law, i.e., authorizing judges to engage in prior censorship of publications. 

Other laws that need to be repealed or made to conform to the American Convention on Human Rights are Articles 263 and 264 of the Penal Code and Article 284 of the Code of Military Justice, which also recognize and establish penalties for the crime of desacato (expression offensive to authority). 

Some public officials are indeed using this anachronistic legislation. A case in point: an episode occurred in Chile in 1999 that was a regretable setback for freedom of expression and information in that country, and so disproportionate that it became international news. 

On April 13, 1999, the book titled El Libro Negro de Justicia Chilena, written by journalist Alejandra Matus and published by Editorial Planeta, was banned in Chile. Police confiscated the book in question from Chilean bookstores and the warehouses of Editorial Planeta. Its circulation was banned in Chile by order of Judge Ismael Huerta, in response to a court action brought by a sitting justice of the Chilean Supreme Court and its former chief justice, Servando Jordán. The latter invoked article 6(b) of the State Security Law and other laws to request that the book be confiscated and its circulation banned throughout Chile. 

In addition to the court-ordered confiscation and ban of the book, journalist Alejandra Matus and Editorial Planeta were charged with defamation under the State Security Law. When Matus learned of her imminent arrest, she left for Buenos Aires and then the United States. The latter granted her political asylum in June 1999. Charges were also brought against Bartolo Ortíz, manager of Editorial Planeta, and Carlos Orellana, editor of Planeta. The Police arrested them on June 16 and held them for two days. Both were then released. 

As of this writing, El Libro Negro de la Justicia Chilena is still banned and its author is under indictment.

In April 1999, a group of Chilean congressmen introduced a bill to amend the State Security Law. The most important changes were to eliminate desacato from Article 6(b) and to amend Article 16, which the judges use to ban publications. The executive branch later proposed some additional amendments. These legislative initiatives are still in Congress. 

Finally, the Chilean Constitution still contains a clause allowing film censorship. It stipulates that "the law shall establish a censorship system for the screening and advertising of films." This clause is contrary to Article 13 of the American Convention, which states that the right to freedom of expression and information cannot be subject to prior censorship but shall be subject to subsequent imposition of liability. The only exception is for the purpose of regulating children’s access to public entertainments. /88

The Special Rapporteur urges the Chilean authorities to act swiftly on those initiatives aimed at repealing contempt laws that penalize expression offensive to public officials [desacato], laws that allow film censorship, and any other law on freedom of expression and information that is contrary to the American Convention. 

Dominican Republic 

Rule 824 on the operation of the National Entertainment and Radio Commission authorizes the Commission to suspend entertainment containing portions the Commission has not approved; while Article 71 requires organizers to submit librettos to the Commission for review. These provisions could result in prior censorship, which is a violation of Article 13 of the American Convention. 

According to reports received, some individuals have been barred from speaking on radio and television. By analogy to Advisory Opinion OC-5/85, issued by the Inter-American Court of Human Rights, one could argue that this rule is contrary to Article 13 of the Convention, since it denies those who do not have the identification card issued by the Commission their right to exercise their freedom to speak on radio or television. 

The Court has held that: