ORGANIZATION OF AMERICAN STATES

INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

REPORT OF THE RAPPORTEUR FOR FREEDOM OF EXPRESSION

Dr. Santiago A. Canton
Special Rapporteur for Freedom of Expression


OEA/Ser.L/V/II.106

Doc. 3 rev.

April 13, 2000

Original: Spanish

GENERAL SECRETARIAT ORGANIZATION OF AMERICAN STATES

1889 F St. N.W. WASHINGTON, D.C. 20006

2000

Internet: http://www.cidh.org

E-mail: cidhoea@oas.org


TABLE OF CONTENTS

REPORT OF THE RAPPORTEUR FOR FREEDOM OF EXPRESSION 1999

 

INTRODUCTION

CHAPTER I GENERAL REPORTS

  1. Mandate and competence of the Office of the Rapporteur for Freedom of Expression and Information
  1. The Office of the Rapporteur’s principal activities in 1999

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

  1. Introduction

  1. Legislation and freedom of expression

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

a. Actual Malice

b. Decriminalizing Libel and Slander Laws

2. Faithful reporting

3. Freedom of information

4. The concept of a right to truthful information

  1. Women and freedom of expression

  1. The Internet and freedom of expression

  1. Freedom of expression and information in some member states

Progress

1. Restrictions and threats to freedom of expression

a. States without freedom of expression

b. States where freedom of expression is severely limited

c. Other cases

  1. Assassination of journalists

CHAPTER III FINAL THOUGHTS AND RECOMMENDATIONS

ANNEXES

  1. Complete text of Article 13 of the American Convention on Human Rights
  2. Press releases
  3. Joint declaration on freedom of expression
  4. Law project – Argentine Senate
  5. Declaration of Chapultepec
  6. The public’s right to know principles on freedom of information legislation

REPORT OF THE SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESSION

 

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.

CHAPTER I

GENERAL REPORTS

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 97th 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 98th 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:

We agree that a free press plays a fundamental role in this area and we reaffirm the importance of guaranteeing freedom of expression, information, and opinion. We commend the recent appointment of a Special Rapporteur for Freedom of Expression, within the framework of the Organization of American States. /12

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:

Strengthen the exercise of and respect for all human rights and the consolidation of democracy, including the fundamental right to freedom of expression and thought, through support for the activities of the Inter-American Commission on Human Rights in this field, in particular the recently created Special Rapporteur for Freedom of Expression. /13

B. The Office of the Rapporteur’s principal activities in 1999

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 55th 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

In late December, the Special Rapporteur was invited to participate at a plenary session of the committees of the Argentine Senate. The Special Rapporteur explained his views and shared his ideas on the bill to decriminalize the crimes of slander and libel, which arose from the friendly settlement proceedings begun by the journalist Horacio Verbitsky within three cases that are currently before the Commission. In addition to Dr. Canton, the event was also attended by Senator José Romero Feris, member of the Committee on Freedom of Expression, Minister of Justice Ricardo Gil Lavedra, journalist Horacio Verbitsky, who is Vice President of PERIODISTAS, constitutional lawyer Gregorio Badeni, and Senators Pedro Del Piero and José Genoud.  

CHAPTER II

 ASSESSMENT OF THE SITUATION OF FREEDOM OF EXPRESSION IN THE HEMISPHERE 

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 use of desacato laws to protect the honor of public functionaries acting in their official capacities unjustifiably grants a right to protection to public officials that is not available to other members of society. This distinction inverts the fundamental principle in a democratic system that holds the Government subject to controls, such as public scrutiny, in order to preclude or control abuse of its coercive powers. If we consider that public functionaries acting in their official capacity are the Government for all intents and purposes, then it must be the individual and the public’s right to criticize and scrutinize the officials’ actions and attitudes in so far as they relate to public office. /25

The Commission then added the following: 

Moreover, … contrary to the rationale underlying desacato laws, in democratic societies political and public figures must be more, not less, open to public scrutiny and criticism. The open and wide-ranging public debate, which is at the core of democratic society, necessarily involves those persons who are involved in devising and implementing public policy. Since these persons are at the center of public debate, they knowingly expose themselves to public scrutiny and thus must display a greater degree of tolerance for criticism. /26

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: 

Even those laws which allow truth as a defense inevitably inhibit the free flow of ideas and opinions by shifting the burden of proof onto the speaker. /34

 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: 

This is particularly the case in the political arena where political criticism is often based on value judgments, rather than purely fact-based statements. Proving the veracity of these states may be impossible, since value judgments are not susceptible of proof. /35  Thus, a rule compelling the critic of public officials to guarantee the factual assertions has disquieting implications for criticism of governmental conduct. It raises the possibility that a good-faith critic of government will be penalized for his or her criticism. /36

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: 

The sort of political debate encouraged by the right to free expression will inevitably generate some speech that is critical of, and even offensive to those who hold public office or are intimately involved in the formation of public policy. A law that targets speech that is considered critical of the public administration by virtue of the individual who is the object of the expression, strikes at the very essence and content of freedom of expression. /37

 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: 

(…) However, particularly in the political arena, the threshold of State intervention with respect to freedom of expression is necessarily higher because of the critical role political dialogue plays in a democratic society. The Convention requires that this threshold be raised even higher when the State brings to bear the coercive power of its criminal justice system to curtail expression. Considering the consequences of criminal sanctions and the inevitable chilling effect they have on freedom of expression, criminalization of speech can only apply in those exceptional circumstances when there is an obvious and direct threat of lawless violence. /38

The Commission added the following: 

The Commission considers that the State’s obligation to protect the rights of others is served by providing statutory protection against intentional infringement of honor and reputation through civil actions and by implementing laws that guarantee the right of reply. In this sense, the State guarantees protection of all individuals’ privacy without abusing its coercive powers to repress individual freedom to form opinions and express them. /39

 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:

 … those to whom the Convention applies not only have the right and freedom to express their own thoughts but also the right and freedom to seek, receive and impart information and ideas of all kinds… (Freedom of expression) requires, on the one hand, that no one be arbitrarily limited or impeded in expressing his own thoughts. In that sense, it is a right that belongs to each individual. Its second aspect, on the other hand, implies a collective right to receive any information whatsoever and to have access to the thoughts expressed by others. /45

 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: 

Every person shall have the right to file a petition (of habeas data) to see any information that public or private data banks have on file with regard to him and how that information is being used to supply material for reports. If the information is false or discriminatory, he shall have the right to demand that it be removed, be kept confidential or updated, without violating the confidentiality of news sources. /49

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

 On the one hand, anyone can see the data that public or private databases or records have on file with regard to him and the use to which that data is being put. On the other hand, if there is some misinformation or discrimination, this Article gives the individual the right to demand that the information be removed, corrected, kept confidential or updated, without breaching the confidentiality of news sources.

 Article 28 of Venezuela’s new Constitution provides that: 

Every person shall have the right to access the information and data that official or private records have on file with regard to his person and/or property, with the exceptions that the law stipulates. He or she shall also have the right to know how that information is being used and to what purpose, and to petition the competent court to have the information updated, corrected or destroyed, if there are errors or his or her rights are unlawfully affected. 

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

A petition of habeas data filed against an act or omission on the part of any authority, official or person, that violates or threatens the rights to which Article 2, paragraphs 5 and 6, refers. 

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: 

In accordance with the principle that all government affairs shall be public, any person shall be entitled to request complete, truthful, adequate and timely information from any organ of the central administration, the decentralized administration, independent regulatory agencies, State-owned businesses and companies, corporations in which the State is the majority shareholder, dual economy ventures, and all those other businesses in which the City Government is a shareholder or has some role in corporate decision-making, from any office of the legislative and judicial branches of the city government, insofar as their government business is concerned, and the other organs established under Book II of the Constitution of the City of Buenos Aires. 

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

To request, without indicating the reason, the information that one requires and to receive it from any public entity, within the legal time period, at the cost that the request involves. The exceptions are information affecting personal privacy and those expressly precluded by law or for reasons of national security (…)

 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: 

The two dimensions mentioned of the right to freedom of expression must be guaranteed simultaneously. 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. /56

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. 

In addition, Mohme, Páez, and other journalists of the newspaper have been the target of a smear campaign by various tabloid press media such as Repúdica, which was published in May 1999, but survived only one issue, because the Instituto Nacional de Defensa de la Competencia y la Propiedad Intelectual (National Institute to Defend Competition and Intellectual Property) passed a resolution banning its circulation. Repúdica was replaced by Repudio, which had the same content and objective of discrediting these journalists. Subsequently, in September 1999, a new anonymous publication called Repútica del Gran Sur came out in Puno. Like Repúdica, it also aimed to discredit La República and its publisher. The injured parties filed a complaint requesting a thorough investigation. 

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. 

Another example of serious violations to the right to freedom of expression is the case of Mr. Baruch Ivcher Bronstein. Mr. Ivcher was born in Israel and acquired Peruvian citizenship in 1984. Under Peruvian law, Peruvian citizens may own shares in companies holding concessions for television channels in Peru. Within this legal framework, Mr. Ivcher owned 53.95% of the equity of Compañía Latinoamericana de Radiodifusión, the company that operates Channel 2, Frecuencia Latina

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 

This law establishes penalties for violations of public order and stipulates that these offenses occur whenever the president of the Republic, ministers of state, senators, deputies, members of the courts, the comptroller general, commanders-in-chief of the armed forces or the director general of the Carabineros is insulted, irrespective of whether the defamation, libel or slander is related to the offended party’s performance of his official duties. /86

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: 

76. The Court concludes, therefore, that reasons of public order that may be valid to justify compulsory licensing of other professions cannot be invoked in the case of journalism because they would have the effect of permanently depriving those who are not members of the right to make full use of the rights that Article 13 of the Convention grants to each individual. Hence, it would violate the basic principles of a democratic public order on which the Convention itself is based. 

77. The argument that licensing is a way to guarantee society objective and truthful information by means of codes of professional responsibility and ethics, is based on considerations of general welfare. But, in truth, as has been shown, general welfare requires the greatest possible amount of information, and it is the full exercise of the right of expression that benefits this general welfare. In principle, it would be a contradiction to invoke a restriction to freedom of expression as a means of guaranteeing it. Such an approach would ignore the primary and fundamental character of that right, which belongs to each and every individual as well as the public at large. A system that controls the right of expression in the name of a supposed guarantee of the correctness and truthfulness of the information that society receives can be the source of great abuse and, ultimately, violate the right to information that this same society has.… 

80. The Court also recognizes the need for the establishment of a code that would assure the professional responsibility and ethics of journalists and impose penalties for infringement of such a code. The Court also believes that it may be entirely proper for a State to delegate, by law, authority to impose sanctions for infringement of the code of professional responsibility and ethics. But, when dealing with journalists, the restrictions contained in Article 13(2) and the character of the profession, to which reference has been made (supra 72-75), must be taken into account. 

81. It follows from what has been said that a law licensing journalists, which does not allow those who are not members of the "colegio" to practice journalism and limits access to the "colegio" to university graduates who have specialized in certain fields, is not compatible with the Convention. Such a law would contain restrictions to freedom of expression that are not authorized by Article 13(2) of the Convention and would consequently be in violation not only of the right of each individual to seek and impart information and ideas through any means of his choice, but also the right of the public at large to receive information without any interference. /89

F. Assassination of journalists 

The Office of the Rapporteur has received information on the journalists killed in 1999. Given the various stories received and after investigating the veracity of the information, it has decided to refer to those cases in which there are reasons to suppose that the motive behind the murders was related to the victims’ practice of journalism.

Argentina

 May – Ricardo Gangeme (56). This journalist was killed on May 13, in the city of Trelew, province of Chubut. He was director of the weekly El Informador Chubutense and was killed as he was parking his car in front of his home. Gangeme had previously reported irregularities and corruption in the provincial government and by some local businessmen. Five days before he was killed, the journalist had filed a complaint of death threats, allegedly from Argentine businessman Héctor Fernándes. On June 23, 1999, the judge hearing the case ordered that the businessman be indicted and, as the record shows, some days before Gangeme’s death, the businessman had told him: "You’re going to die for the things you’re writing." In November 1999, preventive detention was ordered for six people charged in Gangeme’s death and according to the sentencing arguments, the journalist was most likely killed for his investigative journalism.

Colombia 

April – Hernando Rangel (44). This journalist was killed on April 11, 1999, in Plato, Magdalena. Rangel was director of the local publication Sur 30 Días and was attacked at the home of a friend. An unknown assailant shot him four times in the head. The journalist was also working independently and had a reputation for reporting corruption in government. The investigations conducted by the Prosecutor’s Office found that the suspected intellectual author of the crime was Fidias Zeider Ospino, a mayor of that municipality who had been suspended. He was arrested on December 7, 1999. 

August – Jaime Garzón (36). This journalist was killed on August 13, 1999, in Bogota. He was both a journalist and humorist with Radionet and Caracol Televisión and was assaulted by two men on a motorcycle, as he was listening to the radio. At the outset, a man who spoke on behalf of the Autodefensas Unidas de Colombia (AUC) claimed responsibility for the murder; later, however, this group denied the information in a fax sent to the Radionet station. The journalist was known for his role in the peace negotiations to obtain the release of persons abducted by guerrilla movements. He had also lobbied to get the authorities to begin talks with the Ejército de Liberación Nacional (ELN). 

September – Guzmán Quintero Torres (34). This journalist was killed on September 16, 1999, in Valledupar, capital of the department of Cesar. He was editor-in-chief of the newspaper El Pilón. An armed man approached him and shot him several times in the head and in the chest. He then fled the scene on a motorcycle. Two El Pilón journalists who were with Quntero Torres that night were witnesses to the event. Quintero was respected in journalistic circles. He was founder and vice president of the Valledupar Journalists’ Club and a correspondent for Televista, a news program carried by Telecaribe, a regional television chain. He was also coordinator of the program to train communicators for community participation, conducted by the Universidad Nacional Abierta y a Distancia. 

The motive for the killing has not yet been determined. According to his colleagues, Quintero had not received threats in the days leading up to the killing, although some years back he had received threats for publishing a note in the newspaper El Heraldo about the Autodefensas Unidas de Colombia (AUC), a paramilitary group fighting other guerrilla groups. After these threats, the journalist stopped reporting on political matters and devoted himself exclusively to the finance area. However, Quintero Torres had been investigating the murder of journalist Amparo Leonor Jiménez , which was on August 11, 1998. 

October – Rodolfo Luis Torres (38). Torres was killed on October 21, 1999, in the city of San Onofre in the department of Sucre. The body of the journalist, a correspondent for Radio Fuentes of Sincelejo, was found along a highway with three bullet holes to the head. According to witnesses, very early that morning four men had forcibly dragged him from his home. 

Torres was also working as a mayor’s press secretary. He had once been a correspondent for Radio Caracol and the newspaper Meridiano in Sincelejo. Torres’ colleagues were certain that the journalist was killed in retaliation for his published articles. One year later, a series of anonymous pamphlets distributed in the city accused him of belonging to an armed dissident group called the Ejército de Liberación Nacional (ELN). 

December – Pablo Emilio Medina Motta (21). This journalist was killed on December 4, 1999, between the cities of Gigante and Garzón, in the department of Huila. According to the first police report, Pablo Emilio Medina, a television cameraman for TV Garzón, was believed to have been killed by an armed dissident group called the Fuerzas Revolucionarias de Colombia (FARC) while covering the group’s offensive on the city of Gigante. Members of FARC allegedly fired on Pablo Emilio Medina as he, riding in a police motorcycle at the time, was filming the attack. Local journalists said that the FARC members fired because they mistook him for the police.

CHAPTER III 

FINAL THOUGHTS AND RECOMMENDATIONS 

The violations of freedom of expression in the hemisphere vary from virtually absolute censorship in Cuba to simple administrative or bureaucratic obstacles to finding information. 

The Office of the Rapporteur is most disturbed by the murders of journalists, mainly because of the terrible loss of human life and the demoralizing effect that such acts have on all society. 

The murders of journalists notwithstanding, the main obstacle to full enjoyment of the right to freedom of expression is the legislation used by authorities to silence their critics. In some cases, these laws have to be amended; elsewhere, principles have to be introduced that guarantee the right to freedom of expression. The law, observance of the law, and freedom of expression are pillars of a democratic society. Weakness in any one of them, as is true in some States in this hemisphere, poses a constant threat to the stability of democratic government in the hemisphere. 

The Special Rapporteur recommends to the member States that they adapt their domestic laws to conform to the parameters established in the American Convention on Human Rights and to ensure full compliance with the terms of Article IV of the American Declaration of the Rights and Duties of Man. 

The Special Rapporteur again recommends that the member States repeal their contempt [desacato] laws, as they restrict the public debate that is essential to the functioning of a democratic society and are contrary to the American Convention on Human Rights. 

The Rapporteur urges the States to incorporate into their laws the dual system of protection with respect to public and private persons, one practical consequence of which is the acceptance of the doctrine of "actual malice" and the resulting amendment of libel and slander laws. He also reminds States that publishing information provided by third parties cannot be restricted by the threat of holding the publisher responsible for repeating claims made by another. 

The Special Rapporteur is recommending to the member States that access to information and habeas data be guaranteed for all citizens, both in fact and in law, as both are essential to freedom of expression and the democratic system of government. 

The Special Rapporteur also recommends the elimination of any qualifications that could imply prior censorship of the right of freedom of expression, such as demanding that information be true. 

The Special Rapporteur is recommending that the States introduce and put into practices effective policies and measures that allow women equal access to education and make it easier for women to report acts of violence and have the responsible parties prosecuted. The States should also conduct promotional and educational campaigns about women’s rights and the mechanisms available to ensure their protection./90  The Rapporteur is urging the states to put into practice mechanisms that will give women equal representation in political life. 

The Special Rapporteur 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 Special Rapporteur thus urges the member States to refrain from implementing any sort of regulation that would violate the terms of the American Convention. 

Finally, the Rapporteur would like to thank the various States that have collaborated with the Office of the Rapporteur this year, and the Inter-American Commission on Human Rights and its Executive Secretariat for their abiding support. 

Similarly, the Special Rapporteur wishes to thank the independent journalists who day after day perform one of the functions most crucial to a democratic society, which is to report information to the public so that they might exercise their rights and fulfill their obligations as informed citizens. 


Endnotes:

1/  American Declaration of the Rights and Duties of Man, adopted by the Ninth International Conference of American States, Bogotá, Colombia, 1948, Chapter One, Article IV.

2/   See complete text of Article 13 of the American Convention in Appendix 1.

3/ Pursuant to Article 1 of the Statute of the Inter-American Commission on Human Rights, the Inter-American Commission on Human Rights takes "human rights" as meaning:

a. The rights set forth in the American Convention on Human Rights, in relation to the States Parties thereto;

b. The rights set forth in the American Declaration of the Rights and Duties of Man, in relation to the other member states.

Statute of the Inter-American Commission on Human Rights, Resolution No. 447 (IX-0/79), adopted by the Ninth Regular Session of the OAS General Assembly, October 31, 1979, Article 1, paragraphs 1 and 2.

4/  Declaration of Chapultepec, adopted by the Inter-American Press Association at the Hemisphere Conference on Free Speech in Mexico City on March 11, 1994. The full text of the Declaration can be found in Appendix 5. The Declaration has been ratified by the heads of state and government of Argentina, Bolivia, Belize, Brazil, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Puerto Rico, Uruguay, and the USA.

5/  Inter-American Court of Human Rights, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 of the American Convention on Human Rights), Advisory Opinion OC-5/85. Series A No. 5, para. 33.

6/  See articles 40 and 41 of the American Convention on Human Rights and Article 18 of the Statute of the Inter-American Commission on Human Rights.

7/  IACHR, Annual Report 1994, Report on the Compatibility between the Desacato Laws and the American Convention on Human Rights, OEA/Ser.L/V/II.88, Doc. 9 Rev. (1995).

8/  See, Report on the Situation of Human Rights in Mexico, OEA/Ser.L/V/II.100 Doc. 7 rev. 1, 24 September 1998; Report on the Situation of Human Rights in Colombia, OEA/Ser.L/II.102 Doc. 9 Rev. 1, 26 February 1996.

9/  Article 29.b of the Commission’s Regulations provides that: "In urgent cases, when it becomes necessary to avoid irreparable damage to persons, the Commission may request that provisional measures be taken to avoid irreparable damage in cases where the denounced facts are true."

10/  For example, on November 21, 1999, the Commission asked the Government of Peru to adopt precautionary measures on behalf of the journalist Guillermo Gonzáles Arica; these were processed under the aegis of Case No. 12.085. Similarly, on September 17, 1999, the IACHR asked the Government of Mexico to adopt precautionary measures to protect the life and person of the journalist Jesús Barraza Zavala.

11/  In general terms the Commission described the duties and mandates of the Office of the Rapporteur as follows: 1) preparing a report on the situation of freedom of expression in the Americas and presenting it to the Commission for its consideration and inclusion in the IACHR’s Annual Report to the OAS General Assembly; 2) preparing thematic reports; 3) compiling the information needed to prepare the reports; 4) organizing the promotional activities that the Commission entrusts to it, including but not limited to presenting documents at conferences and seminars on related issues, educating officials, professionals and students about the Commission’s work in this area, and preparing other promotional materials; 5) immediately reporting to the Commission situations that are so urgent as to warrant the Commission’s requesting precautionary measures or filing with the Inter-American Court seeking provisional measures to avoid irreparable injury to human rights; 6) providing information to the Commission on individual cases related to freedom of expression.

12/  Declaration of Santiago, Second Summit of the Americas, April 18-19, 1998, Santiago, Chile, in "Official Documents of the Summits Process: from Miami to Santiago." Volume I, Office of Summit Follow-up, Organization of American States.

13/  Plan of Action, Second Summit of the Americas, April 18-19, 1998, Santiago, Chile. In "Official Documents of the Summits Process: from Miami to Santiago." Volume I, Office of Summit Follow-up, Organization of American States.

14/  During his stay in Chile, the Rapporteur met with the following: Sergio Elgueta, Chairman of the Committee on Legislation, the Constitution and Justice of the House of Deputies; Hernán Larraín, Chairman, Senate Committee on Legislation, the Constitution and Justice; Senator Mario Ríos, Vice President of the Senate; Deputy Carlos Montes, President, House of Deputies; Deputy Guillermo Ceroni, Chairman, Human Rights Committee, House of Deputies; Claudio Huepe, Minister Secretary General of Government; Juan Antonio Gómez, Under Secretary for Justice; Roberto Dávila, President of the Supreme Court; representatives of the Asociación Nacional de Prensa; representatives of the Journalists Association; representatives from the Public Interest Actions Program of the Universidad Diego Portales; representatives from Editorial Planeta, and others.

15/  See Press Communiqué from the Office of the Special Rapporteur for Freedom of Expression No. 11/99.

16/  See Press Communiqué from the Office of the Special Rapporteur for Freedom of Expression No. 19/99.

17/  IACHR, Annual Report 1998, Report of the Rapporteur for Freedom of Expression, 16 April 1999, p. 50.

18/  IACHR, Report No. 50/99, Case No. 11,739 (Mexico). The Inter-American Court of Human Rights has held that: "The State is obligated to investigate every situation involving a violation of the rights protected by the Convention. If the State apparatus acts in such a way that the violation goes unpunished and the victim’s full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction. The same is true when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention." (Inter-American Court of Human Rights, Velásquez Rodríguez Case, Judgment of July 29, 1988, para. 176).

19/  The report of the Rapporteur for Freedom of Expression identified 16 countries were such desacato legislation is in force: Bolivia, Brazil, Chile, Costa Rica, Cuba, the Dominican Republic, Ecuador, El Salvador, Honduras, Mexico, Nicaragua, Panama, Peru, Uruguay, and Venezuela. IACHR, Annual Report 1998, Report of the Office of the Rapporteur for Freedom of Expression, April 16, 1999, pp. 40-44.

20/  See Article 2 of the American Convention on Human Rights.

21/  In this regard, the Argentine constitutional lawyer Gregorio Badeni has stated that:

It is true that freedom of the press, like the other constitutional freedoms, is not absolute in terms of the consequences that follow from the exercise of that freedom. However, when freedom of the press operates on the institutional or strategic phase, special rules must be applied to determine legal liability, rules different from those acceptable on the personal phase. Not in order to grant some privilege to someone who exercises that freedom, but in order to preserve the survival of a constitutional system of democratic government.

Badeni, G. Libertad de Prensa [Freedom of the Press], Editorial Abeledo Perrot, Buenos Aires 1997, p. 386 (unofficial translation).

22/  Inter-American Court of Human Rights, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, Series A No. 5, paragraph 70.

23/  Ibid.

24/  One justice of the United States Supreme Court wrote that:

This nation, I suspect, can live in peace without libel suits based on public discussions of public affairs and public officials. But I doubt that a country can live in freedom where its people can be made to suffer physically or financially for criticizing their government, its actions, or its officials. "For a representative democracy ceases to exist the moment that the public functionaries are by any means absolved from their responsibility to their constituents; and this happens whenever the constituent can be restrained in any manner from speaking, writing, or publishing his opinions upon any public measure, or upon the conduct of those who may advise or execute it."

The New York Times Co. v. Sullivan, 376 US 255, 84 S.Ct. 710 (1964).

25/  Op. Cit., 3, p. 207.

26/  Op. Cit., 3, pp. 207-208.

27/  Lingens v. Austria, European Court of Human Rights, Res. No. 09815/82, para. 42.

28/  The Rapporteur for Freedom of Expression has repeatedly underscored the need to repeal the desacato laws that exist in this hemisphere’s legal systems.

29/ The Office of the Special Rapporteur decided to use the expression actual malice to refer to this doctrine based on the fact that it is commonly known in those terms in the Americas.

30/ The New York Times v. Sullivan, 376 US 255, 84 S. Ct. 710 (1964). Although the doctrine of actual malice has been introduced in both civil and criminal proceedings in different countries around the hemisphere, it should be noted that when the victim of slander is a private citizen, the normal standard of negligence is applied to determine the liability of the person responsible for false information.

31/  The majority’s main argument for the principle of "actual malice" was the importance of freedom of expression and information to the functioning of a democratic society.

The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Roth v. United States, 354 U.S. 476, 484. "The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system." Stromberg v. California, 283 U.S. 359, 369. "[I]t is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions," Bridges v. California, 314 U.S. 252, 270, and this opportunity is to be afforded for "vigorous advocacy" no less than "abstract discussion." N.A.A.C.P. v. Button, 371 U.S. 415, 429 [376 U.S. 254, 270].

Elsewhere the Court affirmed the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." It also wrote that "Neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct [and] the combination of the two elements is no less inadequate."

Interestingly, one of the concurring opinions went even further and stated that: "[t]he First and Fourteenth Amendments to the Constitution afford to the citizen and to the press an absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses."

31/  See Badeni, G., Libertad de Prensa, Editorial Abeledo Perrot, Buenos Aires, 1997, pp. 414-417.

33/  Pellet, A., La Libertad de Expresión, Editorial Abeledo Perrot, Buenos Aires, 1993, p. 189.

34/  Op. Cit., 3, p. 208.

35/  The reference here is specifically to crimes of libel.

36/  Op. Cit., 3, p. 208-209.

37/  In this sense, much of the report on desacato laws is applicable to laws of this type. In some respects desacato laws, understood as laws that punish speech that is offensive, insulting or threatening to a public official in the performance of his official functions, are similar to slander and libel laws when the person whose honor is alleged to have been "offended" is a public official, public figure, or private person who has voluntarily become involved in public issues. Op. Cit., 3, p. 208.

38/  Op. Cit., 3, p. 211.

39/  Op. Cit., 3, p. 211.

40/  Bianchi, E. et al., El Derecho a la Libre Expresión, Editorial Planeta, 1997, p. 97.

41/  Idem.

42/  The right to access information held by the government (public information) and habeas data both follow from the right to freedom of information. While the two are similar in that they have a similar objective, the information to which they grant access serves a clearly different function. The information in the first case is public in nature, and the right to that information is informed by the need to make the democratic system work better and scrutinize government. Habeas data, however, provides one the opportunity to request information housed in both government data banks and private data banks.

43/  Inter-American Court of Human Rights, "Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 of the American Convention on Human Rights), Advisory Opinion OC-5/85 of November 13, 1985, para. 70.

44/  Ibid., para. 32.

45/  Ibid., para. 30.

46/  Pierini, A. et al., Habeas Data, Editorial Universidad, Buenos Aires 1999, p. 21.

47/  Medina, C, Sistema Jurídico y Derechos Humanos, Escuela de Derecho, Universidad Diego Portales, 1996. Cited in Rodríguez, D. et al., La dimensión internacional de los Derechos Humanos, Inter-American Development Bank – American University, Washington, D.C., 1999, p. 305.

48/  Some of the procedures that would ensure compliance with the duty to provide information would be: to penalize public officials who refuse to supply information without cause; to impose fines on the State for failing to comply with its obligation; and to make provision for rapid judicial review through a petition of amparo.

49/  Cámara Nacional en lo Civil, Sala B, February 14, 1997, "Varksberg, Hermann", LL, t. 1997-C p. 946, Ibid 38, p. 204.

50/  See Annex Nº 6

51/  The concept of truthful information is used here because it has received so much attention of late. However, within this concept we include others, such as the concepts of timely, objective, ample, thorough information, and so on.

52/  Article 13 of the American Convention states the following: "Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence."

In this regard, in The New York Times v. Sullivan case, the United States Supreme Court held the following:

The state rule of law is not saved by its allowance of the defense of truth. A defense for erroneous statements honestly made is no less essential here than was the requirement of proof of guilty knowledge which, in Smith v. California, 361 U.S. 147, we held indispensable to a valid conviction of a bookseller for possessing obscene writings for sale. We said: "For if the bookseller is criminally liable without knowledge of the contents, … he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature… And the bookseller’s burden would become the public’s burden, for by restricting him the public’s access to reading matter would be restricted… [H]is timidity in the face of absolute criminal liability, thus would tend to restrict the public’s access to forms of the printed word which the State could not constitutionally [376 U.S. 254, 279] suppress directly. The bookseller’s self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered. Through it, the distribution of all books, both obscene and not obscene, would be impeded." A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions –and to do so on pain of libel judgments virtually unlimited in amount- leads to a comparable "self-censorship."

53/  The analysis we make of the concept of "erroneous" information and its incompatibility with international norms would no doubt apply to all other adjectives used to qualify information, such as out-of-date, incomplete, and so on.

54/  Mill, John Stuart, On Liberty and Other Writings, Chapter 2, Of the Liberty of Thought and Discussion, Cambridge University Press, Cambridge, 1997, p. 38.

55/  In his On Liberty and Other Writings, John Stuart Mill wrote at length on the importance of unfettered and unqualified freedom of opinion and expression. Mill mentions three main reasons why divergent arguments and opinions are essential for freedom of expression and opinion. First, if an opinion is true, there is no better way to consolidate and propagate it than to juxtapose it to error. If the opinion is wrong, the contrast with the truth will clearly point up the error, to the good of all society. Finally, the most common case is when conflicting doctrines share the truth between them and a nonconforming opinion is needed to supply the remaining truth.

Because Mill’s observations are so important, clearly stated and current, the Rapporteur cites some of the passages that are particularly relevant for purposes of pointing up the problem with the concept of truthful information:

But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.

If we were never to act on our opinions, because those opinions may be wrong, we should leave all our interests uncared for, and all our duties unperformed.  There must be discussion, to show how experience is to be interpreted. Wrong opinions and practices gradually yield to fact and argument: but the facts and arguments, to produce any effect on the mind, must be brought before it. Very few facts are able to tell their own story, without comments to bring out their meaning.

56/  See Inter-American Court of Human Rights, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 of the American Convention on Human Rights), Advisory Opinion OC-5/85 of November 13, 1985. Series A No. 5, para. 33.

57/  See IACHR, Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L/V/II92 rev.3, May 3, 1996. Article 3(k) of the Charter of the Organization of American States upholds as one of its principles "the fundamental rights of the individual, without distinction as to race, nationality, creed or sex."

58/  That document gives a general idea of the system and includes texts of instruments, norms and statutes related to human rights. See also the Convention on the Elimination of All Forms of Violence against Women, December 18, 1979, 19 I.L.M. 33 (1980).

59/  The civil codes of some countries still have laws on the books that deny a woman’s right to administer conjugal assets, that limit her parental authority over her children, and that authorize a spouse to prohibit his wife from obtaining employment outside the home. (See the María Eugenia Morales de Sierra Case with the Inter-American Commission on Human Rights, March 1998).

60/  On March 6, 1998, the Inter-American Commission on Human Rights named one of its members, Dean Claudio Grossman, to serve as Special Rapporteur for women’s rights. The Report of the Inter-American Commission on Human Rights on the Status of Women in the Americas, adopted March 6, 1998.

61/  See Report of the Inter-American Commission on Human Rights on the Status of Women in the Americas", OEA/Ser.L/V/II.100 of October 17, 1998, p. 16.

62/  Other practices also affect women’s freedom of expression. This report concentrates on these three because they are deemed to be the ones with the greatest impact on free expression. Nevertheless, the discrimination against women in the labor area also affects freedom of expression and information. Discriminatory policies on the part of businesses and corporations are tolerated in some countries, and these policies have the effect of limiting women’s chances for an equal role in public life and give them less of a voice in opinions and decisions.

63/  Statistics developed by the Division of Social Development of the Inter-American Development Bank’s Sustainable Development Department reveal significant discrepancies between men and women with regard to literacy levels worldwide: "Global literacy statistics show that in 1990, there were only 74 women for every 100 literate men. …. Schooling statistics show a similar trend worldwide, 77 million girls of primary school age (6-11 years old) are out of school, compared with 52 million boys." See, Mayra Buvinic, Women in poverty: a global problem. Washington, D.C,, July 1998-No. WID-101.

64/  In December 1993, the United Nations General Assembly approved the Declaration on the Elimination of Violence against Women. Article 1 defines violence against women as "any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life."

65/  The Pan American Health Organization emphasized that according to studies done in a number of Latin American countries, estimates are that only between 15 and 20 percent of the incidents of intrafamily violence against adult women are reported. CEFEMINA, 1994. Mujeres Hacia del 2000: Deteniendo la Violencia, San José, Costa Rica: Programa "Mujer No Estás Sola"CEFEMINA: in La ruta crítica que siguen las mujeres afectada por la violencia intrafamiliar, Pan American Health Organization, Research Protocol, p. 5 (Washington, 1998).

66/  Inter-American Development Bank. Sustainable Development Department. Publication: Violence in Latin America and the Caribbean: A Framework, March 1999.

67/  Human Rights Watch Report 1999: Violence Against Women. At www.hrw.org (Women’s Human Rights p. 2).

68/  At the regional level, in Article 5 of the Convention of Belém do Pará" or the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, adopted by the General Assembly of the Organization of American States on July 9, 1994, the States recognize that violence against women prevents and nullifies the exercise of their fundamental rights.

69/  A statistical study into worldwide female participation in parliaments conducted by the Inter-Parliamentary Union revealed that women occupy only 15.3% of the available seats in the upper and lower chambers of the congresses of the Americas. See http://www.ipu.org/wmn-e/world.htm.

70/  IACHR, Report on the Status of Women in the Americas, published October 13, 1998.

71/  Article IV of the American Declaration of the Rights and Duties of Man states that: "Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever." Similarly, Article 13.1 of the American Convention 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."

72/  The newspaper Panamá América reported on February 25, 1999, that the contempt laws had been used to institute more than 86 legal proceedings against journalists in recent years.

73/  See the full text of the bill in Appendix Nº 4.

74/  See IACHR, 1998 Annual Report, Report of the Rapporteur for Freedom of Expression, April 16, 1999, pp. 34-35.

75/  In January 1998, Cuba denied visas to Argentine journalists Matilde Sánchez from the newspaper Clarín, Mario Perez Colman from the newspaper La Nación and Rodolfo Pousá of Américas TV, who were trying to cover Pope John Paul II’s visit to Cuba.

76/  Article 62 of the Constitution of Cuba.

77/  Law No. 88 on Protection of Cuba’s National Independence and Economy, articles 1, 5(1) and 6(1), February 17, 1999.

78/  See press communiqué No. 4/99 from the Office of the Rapporteur for Freedom of Expression, dated February 18, 1999.

79/  Article 8 of 1997 Law No. 80 on Reaffirmation of the National Dignity and Sovereignty provides that "the full force of this law will be used against anyone who either directly or indirectly collaborates with the enemy’s information media."

80/  The four people are Martha Beatriz Roque Cabello, economist, sentenced to three years six months in prison; Vladimiro Roca, economist, sentenced to five years; Félix Antonio Bonne Carcassés, engineering professor, sentenced to four years; and René Gómez Manzano, attorney, sentenced to four years.

81/  On November 8, 1999, the United States Senate adopted Resolution No. 209, expressing its concern regarding interference in press freedoms and in the independence of the judiciary and stating that:

Whereas the Department of State's Country Report on Human Rights Practices for 1998, dated February 26, 1999, concludes, with respect to Peru, that `government intelligence agents allegedly orchestrated a campaign of spurious attacks by the tabloid press against a handful of publishers and investigative journalists in the strongly pro-opposition daily La Republica and the other print outlets and electronic media';

and, Whereas on July 13, 1997, Peruvian immigration authorities revoked the Peruvian citizenship of Baruch Ivcher, the Israeli-born owner of the Channel 2 television station; and,

Whereas Baruch Ivcher subsequently lost control of Channel 2 under an interpretation of a law that provides that a foreigner may not own a media organization, causing the Department of State's Report on Human Rights Practices for 1998 to report that `threats and harassment continued against Baruch Ivcher and some of his former journalists and administrative staff . . . In September Ivcher and several of his staff involved in his other nonmedia businesses were charged with customs fraud. The Courts sentenced Ivcher in absentia to 12 years imprisonment and his secretary to 3 years in prison. Other persons from his former television station, who resigned in protest in 1997 when the station was taken away, also have had various charges leveled against them and complain of telephone threats and surveillance by persons in unmarked cars': Now, therefore, be it Resolved,

SECTION 1. SENSE OF THE SENATE ON ANTIDEMOCRATIC MEASURES BY THE GOVERNMENT OF PERU.

It is the sense of the Senate that--

(1) the erosion of the independence of judicial and electoral branches of the Government of Peru and the blatant intimidation of journalists in Peru are matters of serious concern to the United States;

(2) efforts by any person or political movement in Peru to undermine that country's constitutional order for personal or political gain are inconsistent with the standard of representative democracy in the Western Hemisphere;

(3) the Government of the United States supports the effort of the Inter-American Commission on Human Rights to report on the pattern of threats to democracy, freedom of the press, and judicial independence by the Government of Peru; and

(4) systematic abuse of the rule of law and threats to democracy in Peru could undermine the confidence of foreign investors in, as well as the creditworthiness of, Peru.

On November 24, 1999, the Argentine Chamber of Deputies unanimously adopted the following statement:

To express its consternation and profound concern at the attitude taken by the Peruvian State in stripping Mr. Baruch Ivcher Bronstein of his nationality in order to eliminate his control over Channel 2, Frecuencia Latina, and thus curtail his freedom of expression, when that channel was known to report serious human rights violations and cases of corruption.

The basis for this Resolution states that freedom of expression is:

A fundamental right for the maintaining the democratic system, since it is the citizens who must, through their votes, periodically judge their rulers. As representatives of the Argentine people and members of a state that claims to be committed to world peace and democracy, we cannot divert our gaze from such a serious act of violence that does not only harm the journalist in question but also deprives the people of Peru as a whole, our brothers, of elements for forming critical opinions of their representatives.

82/  In its 1998 Annual Report, the Commission wrote that the limited independence of the Peruvian Judiciary had created a climate of juridical insecurity for the exercise of journalism, compounding a wave of death threats and a campaign to persecute and smear journalists critical of the government.

83/  See press communiqués in appendices.

84/  See press communiqué from the Rapporteur for Freedom of Expression No. 16/99, dated November 12, 1999.

85/  Article 2 of the American Convention on Human Rights provides that "where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions," the States have an obligation to "adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms." The Court has held that the State has a legal obligation to adopt the measures necessary to comply with its obligations under the treaty, whether those measures be legislative or of some other kind.

86/  The Rapporteur has been told that this article has been used on various occasions and by a number of public officials as a means to silence critics or to remove them from the political debate. The Special Rapporteur received reports of multiple legal actions brought against journalists or politicians under Article 6(b) of the State Security Law. The following cases of legal proceedings instituted against journalists are mentioned merely by way of example: Juan Andrés Lagos, director of El Siglo; Francisco Herreros, director of Pluma y Pincel; Juan Pablo Cárdenas, director of the journal Análisis; Osvaldo Muray, of Fortín Mapocho; Guillermo Torres, director of El Siglo; Alberto Luengo and Mónica González, of La Nación; Manuel Cabieses, director of Punto Final; Roberto Pulido and Paula Couddu, of the magazine Cosas; and Fernando Paulsen and José Ale, from the newspaper La Tercera, and others. Among the political leaders charged under this article of the State Security Law are the following: Mario Palestro, Socialist Party deputy; Jorge Schaulsohn and Nelson Avila, deputies from the Partido por la Democracia; Gladys Marín, Secretary General of the Communist Party, and José Antonio Viera Gallo, Socialist Party deputy. Mention should also be made of the suit recently brought against Alejandra Matus.

87/  See Inter-American Commission on Human Rights, Report 11/96, Case No. 11,230 of May 3, 1996, Francisco Martorell v. Chile, in the Commission’s 1996 Annual Report.

88/  Article 19(2) of the Chilean Constitution provides, inter alia, that "the law shall establish a censorship system for the screening and advertising of film productions.

89/  See Inter-American Court of Human Rights, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 of the American Convention on Human Rights), Advisory Opinion OC-5/95 of November 13, 1985, Series A No. 5.

90/  "[T]he legacy of the old laws and openly approved social practices continues to allow widespread intrafamily violence to exist." "Although the laws do not explicitly advocate violence, the failure to react, the indifference, the inefficient and conflicting policies and procedures of social institutions all continue to mirror that structure of domination and subordination that engenders and legitimizes intrafamily violence against women." Sagot Montserrat, 1995. "Gender Socialization, Violence and Femicide." Revista reflexiones, in "La ruta crítica que siguen las mujeres afectadas por la violencia intrafamiliary" Pan American Health Organization, Research Protocol p. 6, Washington, D.C.


ARTICLE 13 OF THE AMERICAN CONVENTION ON HUMAN RIGHTS

 1. 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. 

2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:

a. respect for the rights or reputations of others; or
b. the protection of national security, public order, or public health or morals.

3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions. 

4. Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence. 

5. Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.


OFFICE OF THE SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESSION 

PREN/8/99 

PRESS COMMUNIQUE 

THE RAPPORTEUR FOR FREEDOM OF EXPRESSION

EXPRESSES HIS OPPOSITION TO JUDICIAL DECISION

IN ARGENTINA

The Rapporteur for Freedom of Expression, Santiago A. Canton, expresses his opposition to the decision sentencing Argentine journalist Eduardo Kimel to a one-year prison sentence, and to pay damages in the amount of US$ 20,000 for his comments in the book "La Masacre de San Patricio." The book recounts the killing of Pallottine priests during the most recent military dictatorship. In that book, Kimel argued that "the action of the judges during the dictatorship was, in general, one of deference to, when not complicity with, the repression of the dictatorship"; he went on the describe the action of one judge in particular. 

The Rapporteur is surprised that the journalist who undertook an investigation of this terrifying crime ends up being punished, while the perpetrators of the crime, accessories after the fact, and accomplices continue to enjoy impunity. 

The free exchange of ideas and opinions is a fundamental pillar of democracy. Article 13 of the American Convention, and the leading decisions on the issue, of both international and domestic judicial organs, are very clear in upholding the freedom of expression and the right to information for all citizens. 

The debate on issues that affect all of society should be broad and in-depth, even though, on some occasions, this may not be to the liking of public officials. Democracy can be strengthened through broad freedom of expression that guarantees a free exchange of ideas and opinions, which is fundamental in order for the citizens to be able to make their decisions after the benefit of an informed public debate.

Santiago A. Canton

Special Rapporteur for Freedom

of Expression in the Americas

Washington, D.C.

April 16, 1999


OFFICE OF THE SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESSION 

PREN/9/99

PRESS COMMUNIQUE 

CONCERN OVER THE DETENTION OF OFFICERS

OF THE PUBLISHING HOUSE EDITORIAL PLANETA

The Rapporteur for Freedom of Expression in the Americas, Santiago A. Canton, expresses his most profound concern over the detention, in Chile, of Messrs. Bartolo Ortiz and Carlos Orellana, general manager and editor-in-chief, respectively, of Editorial Planeta. The detention occurred as the result of the judicial proceeding that is now before the judge with jurisdiction for the Court of Appeals (Corte de Apelaciones) of Santiago, Magistrate Rafael Huerta, in connection with the legal actions brought by the Member (Ministro) of the Supreme Court of Chile, Magistrate Servando Jordán, under Article 6(b) of the Internal State Security Act, in the wake of the publication "El Libro Negro de la Justicia Chilena," by journalist Alejandra Matus, published by the aforementioned publishing house. 

Messrs. Bartolo Ortiz and Carlos Orellana were given notice yesterday and detained in the above-noted proceedings for the alleged infraction of Article 12(b) of the Internal State Security Act, which punishes those who "defame, offend, or slander" ("difamen, injurien o calumnien") certain authorities, among them a Member of the Supreme Court.

In this regard, the Inter-American Commission on Human Rights has noted the incompatibility of desacato laws--or laws that punish offensive speech directed at public officials--such as that relied on in this case, with the American Convention, as it noted:

... 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 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.

The Rapporteur recommends to the Chilean authorities that they release Messrs. Bartolo Ortiz and Carlos Orellana as soon as possible, as their detention involves the use of desacato laws as a means of limiting the expression of ideas, in violation of the American Convention on Human Rights, to which the Chilean state is a party.

Santiago A. Canton

Special Rapporteur for Freedom

of Expression in the Americas

Washington, D.C. June 17, 1999


OFFICE OF THE SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESSION 

PREN/10/99 

PRESS COMMUNIQUE 

SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESSION

IN THE AMERICAS

TRAVELS TO PARAGUAY

Washington, July 19. The Special Rapporteur for Freedom of Expression of the Organization of American States (OAS), Santiago A. Canton, will visit Paraguay July 28, 29 and 30, as a member of the Inter-American Commission on Human Rights delegation that will visit the country. 

Mr. Canton will meet with the directors of the communications media, independent journalists, the journalists' union, and officials of the Paraguayan government, to collect information on the status of freedom of expression in Paraguay. "I hope to receive direct information on the status of freedom of expression in Paraguay," said Mr. Canton. "Freedom of expression is a fundamental pillar of democracy, and therefore crucial to the strengthening of Paraguayan democracy." 

The Office of the Rapporteur for Freedom of Expression is now a permanent office with functional independence and its own budget, having been created by the Inter-American Commission on Human Rights within the scope of its attributes and competence, operating within the legal framework of the Commission. The Office of the Rapporteur can trace its origins to the Second Summit of the Americas, held in Santiago, Chile, in April 1998. At that meeting, the heads of State and Government stated expressly:

We agree that a free press plays a fundamental role in [the area of human rights] and we reaffirm the importance of guaranteeing freedom of expression, information, and opinion. We commend the recent appointment of a Special Rapporteur for Freedom of Expression, within the framework of the Organization of American States.

Argentine attorney Santiago A. Canton assumed the position in November 1998.

Santiago A. Canton

Special Rapporteur for Freedom of Expression

In the Americas

Washington, D.C.

July 19, 1999


OFFICE OF THE SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESSION 

PREN/11/99 

PRESS COMMUNIQUE 

Freedom of expression in the hemisphere is one of the fundamental issues of concern to the Inter-American Commission on Human Rights (IACHR). Consequently, the IACHR created the position of Special Rapporteur for Freedom of Expression. This institution has the support of the heads of state and government of the hemisphere, who publicly voiced their concern over the status of that right in the countries of the hemisphere, at the Second Summit of the Americas, held in Chile in April 1998. 

The objectives of the Office of the Rapporteur are, among others, to foster awareness as to the importance of full respect for freedom of expression in the hemisphere, considering its fundamental role in the consolidation and development of democracy and in reporting on and protecting all other human rights, and to make specific recommendations to the member states on matters related to the freedom of expression, so that they might adopt progressive measures beneficial to the enjoyment of this right. 

The Rapporteur would like to thank the Paraguayan authorities for enabling him to do his work, and for their spirit of cooperation in the search for solutions to the problems posed. In addition, the Rapporteur wishes to extend his thanks to the representatives of civil society, the media, and the community of journalists in general for the important information they provided. 

The Office of the Rapporteur considers that freedom of expression must be analyzed along with democracy, for as the Inter-American Court of Human Rights has stated, "freedom of expression is a cornerstone for the very existence; of a democratic society." In this regard, in the IACHR's Annual Report for 1998, the Office of the Rapporteur stated his concern regarding the weakness of democratic institutions in many countries of the Region, where democracy does not yet find fertile ground for its consolidation. To the contrary, there is fertile ground for authoritarian tendencies that have survived the advent of democracy. This is the framework used by the Rapporteur to evaluate freedom of expression in the countries of the hemisphere. 

Prior to the visit, Rapporteur Santiago A. Canton received information from several international organizations expressing their concern over the status of freedom of expression in Paraguay. During the visit, the Rapporteur held joint meetings as part of the IACHR delegation, and also met independently with various authorities from the executive branch and the other branches of government, representatives of civil society, and the media. 

The Rapporteur received information on the lack of progress in the investigation into the assassination of journalist Santiago Leguizamón, in April 1991. The Rapporteur urges the Paraguayan authorities to move more quickly to ensure an effective investigation into the assassination, and to punish the material perpetrators and those who masterminded the killing. In this regard, the Rapporteur reiterates the doctrine of the Commission, that the assassination of a journalist is the most brutal form of restricting the freedom of expression. This practice has two concrete objectives. First, it seeks to eliminate those journalists who carry out investigations into arbitrary acts, abuses, irregularities, or illicit acts of all kinds, on the part of public officials, organizations, or private individuals, to prevent the investigations from drawing to a close, to prevent the information collected from becoming a matter of public record, as it should, or simply to retaliate for the investigations. Second, the killings are a tool of intimidation, by which a clear message is sent to all those persons involved in investigative work. 

According to the Rapporteur's Report for 1998, nowhere in the world is it more dangerous to be a journalist than in Latin America. The Rapporteur notes that pursuant to the American Convention on Human Rights and other instruments of international law, the state has the duty to carry out an effective investigation into the events surrounding the assassination of journalists and to punish the perpetrators of such killings. 

The Rapporteur would like to note his concern over the attack in which an explosive device was detonated at the home of Aldo Zuccolillo, director of the newspaper ABC Color. In this regard, the Rapporteur urges the Paraguayan authorities to carry out an effective investigation into the threats and attacks on journalists, and to punish those responsible, to ensure that such acts not meet with impunity. 

Intimidation of journalists in the form of spoken or written threats, and the physical attacks on individual journalists and/or on the property of journalists and communications media is the most common means of restricting the freedom of expression method in the hemisphere. The assassination of and threats against journalists create a climate hardly conducive to the effective development of the freedom of expression, as violence is used to silence journalists, who are the primary and principal expression of this right.

 The Rapporteur received information regarding judicial cases that affect several journalists and individuals connected to the media. The cases of Messrs. Osvaldo Domínguez Dibb and Alberto Vargas Peña, editor-in-chief and editorial page editor of the daily paper La Nación, are just two examples. 

In addition, the Rapporteur received information on cases of harassment and possible prior censorship by a judge of the city of Villarica against journalists from Radio Panabí Verá. A judge ordered the disciplinary detention of journalists Secundino Silguero and Norma Acuña for having criticized a judicial ruling handed down by that same judge. The Rapporteur is seriously concerned about this case, considering that prior censorship is expressly prohibited by the American Convention on Human Rights. In addition, the Rapporteur received information on the situation that affects Vice-Minister Ricardo Canese and journalist Dolly Galleano as a result of complaints filed against them. 

The Rapporteur will closely monitor all these judicial cases, and reminds the authorities that one of the main concerns of the Office of the Rapporteur for Freedom of Expression is the use of the judicial system, in several countries of the hemisphere, as a means of intimidation, by imposing prison sentences or fines on journalists, or requiring that they appear in court constantly, and pay expenses, to the significant detriment of their activities. When such mechanisms are turned against journalists critical of the authorities, the judicial system is being used to limit the freedom of expression, and not as a means of working out the conflicting interests of the authorities and the journalists. 

In addition, the Office of the Rapporteur received complaints of the excesses committed by some journalists who publicly incited violence before and during the tragic events of March 1999. In this regard, the Office of the Rapporteur recalls that under the American Convention on Human Rights, incitement to violence is prohibited. In these cases, the subsequent imposition of liability on the journalist must be determined with respect for due process of law as provided for by Paraguayan law and international instruments. 

The Rapporteur collected information on issues related to radio-broadcasting, and the concern with respect to the legal framework and criteria for issuing licenses for radio frequencies. This information is very important and will be used in the report that the Office of the Rapporteur is preparing. 

The Rapporteur was informed of the concern in some sectors of Paraguayan society that certain provisions of the new Criminal Code could have a detrimental effect on the freedom of expression. One of these provisions is Article 151(3), which would punish defamation based on a broad and ambiguous definition of the crime, noting that one "shall not exceed the limits of acceptable criticism," which could be interpreted to restrict the freedom of expression. In this regard, the Rapporteur recalls that all provisions regarding freedom of the press should be in line with the standards set forth in Article 13 of the American Convention on Human Rights. 

To conclude, the main concern expressed by independent journalists from the print and broadcast media, high-level authorities of the Paraguayan government, and representatives of civil society organizations, is over the grave polarization, in the media, as to the use of some media outlets as tools for defending personal and/or economic interests, with no commitment to the truth, to the detriment of Paraguayan society's right to information. In this respect, and given the serious consideration these accusations merit, the Office of the Rapporteur reminds all persons related to the communications media that "The credibility of the press is linked to its commitment to the truth, to the pursuit of accuracy, fairness and objectivity..." as provided for in principle number nine of the Declaration of Chapultepec, adopted by the Inter-American Press Association and signed by several heads of state and government of the hemisphere, and thousands of citizens. 

Finally, the Office of the Rapporteur recalls that at all times, as regards freedom of expression, the standards set forth in Article 13 of the American Convention on Human Rights should be taken into account. Article 13 points out: 

1. 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.

2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be expressly established by law to the extent necessary to ensure: 

a. respect for the rights or reputations of others; or 

b. the protection of national security, public order, or public health and morals. 

3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions. 

4. Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence. 

5. Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law. 

The Rapporteur for Freedom of Expression will continue observing and reporting on the situation of freedom of expression in Paraguay, and shall collaborate in seeking mechanisms that promote the full observance of this right. 

Santiago A. Canton

Special Rapporteur for Freedom of Expression

In the Americas

Asunción, Paraguay

July 30, 1999.


 

OFFICE OF THE SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESSION 

PREN/12/99 

PRESS COMMUNIQUE 

RAPPORTEUR FOR THE FREEDOM OF EXPRESSION

REPUDIATES ASSASSINATION OF COLOMBIAN JOURNALIST 

The Rapporteur for Freedom of Expression of the OAS, Santiago A. Canton, expresses his total repudiation of the assassination of Colombian journalist Jaime Garzón, shot down last Friday while on his way to his work at the privately-owned radio station Radionet, in the city of Bogotá. 

Freedom of expression is the cornerstone of democracy, and a fundamental step for building the peace in democracy that the Colombian people seek. Only through the free exchange of ideas and opinions will be it possible to build that peace. 

The assassination of journalists is the most brutal practice for restricting the freedom of expression in the Americas. With 18 journalists murdered in 1998, Latin America is the most dangerous region of the world for the practice of journalism. Unfortunately, due to the particular situation facing Colombia, it has had more journalists killed than any other country in the region in recent years. 

Pursuant to the American Convention on Human Rights, to which Colombia is a party, the states have a duty to carry out an effective investigation into assassinations of journalists, and to punish all of the perpetrators of such crimes. The Inter-American Commission on Human Rights has argued that the non-existence of an effective and complete investigation into the assassination of a journalist and the imposition of criminal sanctions on the direct perpetrators and those who mastermind such killings has an especially detrimental impact on society. Impunity for such crimes not only has a chilling effect on all other journalists, but also on the citizenry, for it leads to the fear of denouncing arbitrary acts, abuses, or indeed any unlawful activity.

The negative effect of the assassination of a journalist can only be countered by decisive action, by the states, to punish the persons responsible for assassinating journalists. In so doing, the states can send a strong and direct message to society that there will be no tolerance for those who commit violations of the right to freedom of expression. 

The Rapporteur hereby calls on the Government of Colombia to take all measures necessary to guarantee that this crime not remain in impunity, and at the same time to seek mechanisms to provide effective protection to all Colombian journalists, who are constantly threatened for carrying out their valuable function of keeping society informed. 

Santiago A. Canton

Special Rapporteur for Freedom of Expression in the Americas

Washington, D.C.,August 13, 1999


OFFICE OF THE SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESSION 

PREN/13/99

PRESS COMMUNIQUE

 

The 104th regular session of the Inter-American Commission on Human Rights (IACHR) of the Organization of American States, headquartered in Washington, D.C., was held from September 21 to October 8, 1999. The Special Rapporteur for Freedom of Expression, Dr. Santiago A. Canton, assisted and advised the Commission in the hearings and meetings it granted. 

The Rapporteur participated in the meeting between the IACHR and President Hugo Chávez Frías. On that occasion, the president expressed his intention to support and observe freedom of expression in his country. In that regard, Dr. Santiago A. Canton states his desire that the draft Constitution of Venezuela, currently being prepared, will constitute a significant advance in the protection of freedom of expression. On this topic in particular, the Office of the Rapporteur expresses concern regarding the proposal to include the right to truthful information in the draft Constitution of Venezuela. The Office of the Rapporteur will be following the evolution of the draft Constitution, which, if approved with this proposal, would be a serious assault on the right to freedom of expression enshrined in Article 13 of the American Convention on Human Rights. 

The Rapporteur also met with a delegation from the Inter-American Press Association (IAPA), headed by its President Jorge Fascetto, from the newspaper El Día of La Plata, Argentina. The IAPA outlined the situation of the press in the Hemisphere and presented to the Commission the cases of four journalists (two from Colombia and two from Brazil) who had been assassinated. At the close of the meeting, the IAPA expressed its agreement with the activities being conducted by the Office of the Special Rapporteur for Freedom of Expression. 

The IACHR and the Special Rapporteur for Freedom of Expression also received Dr. Jorge Salazar, Director of the Institute for Press and Society of Peru. At that meeting, details were provided on the difficult situation the independent press faces in Peru. Particular mention was made of the harassment and constant death threats against journalists who are critical of the authorities. Dr. Salazar said that he himself had recently been the victim of such a threat. He also mentioned the use of indirect mechanisms to suppress freedom of expression, such as the publication of fliers to discredit journalists and media executives who oppose the government. Some prominent independent journalists affirm that those publications originate in the State Intelligence Services. The use of other indirect forms of repression was also underscored, such as the tax authorities exerting pressure on the media. The closing of the opposition newspaper Referéndum last October 4 was one example cited in that regard. The Office of the Special Rapporteur for Freedom of Expression reiterates its concern regarding the serious circumstances undermining freedom of expression in Peru. 

The IACHR and the Rapporteur received updated information on the sentencing in Cuba of four members of the "Internal Dissidents Working Group," Marta Beatriz Roque Cabello, Félix Bonne Carcasés, René Gómez Manzano, and Vladimir Roca Antúnez. They were prosecuted and sentenced for sedition for publishing a manifesto entitled La Patria es de Todos [The Fatherland belongs to Us All], which criticizes the views of the V Congress of the Cuban Communist Party (PCC). Dr. Santiago A. Canton reiterates his rejection of the judgments of the Cuban courts and his condemnation of the absence of the right to free expression in Cuba. 

Dr. Canton also participated in the meeting with Chilean journalist Alejandra Matus, whose right to freedom of expression was seriously infringed upon when the distribution and sale of her book El Libro Negro de la Justicia Chilena [The Black Book of Chilean Justice] were prohibited. As the Office of the Rapporteur previously stated, this case of prior censorship is a serious violation of freedom of expression and is explicitly prohibited in Article 13 of the American Convention. 

Finally, Argentine journalist Horacio Verbitsky participated in a hearing as a petitioner in a case pending before the Commission on violations of freedom of expression in Argentina. The journalist presented himself as a victim in one of the events denounced and as a petitioner in the others. The Office of the Rapporteur took part in the friendly settlement procedure between the Argentine government and the journalist, Horacio Verbitsky.

Santiago A. Canton

Special Rapporteur for Freedom

of Expression in the Americas

Washington, D.C.

October 12, 1999


OFFICE OF THE SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESSION 

PREN/14/99 

PRESS COMMUNIQUE 

RAPPORTEUR FOR FREEDOM OF EXPRESSION

REPUDIATES ASSASSINATION OF COLOMBIAN JOURNALIST 

 

The Rapporteur for Freedom of Expression of the OAS, Santiago A. Canton, expresses his total repudiation of the assassination of Colombian journalist Rodolfo Luis Torres. On October 21, the police found his body in Sincelejo, Sucre, with three bullet wounds to the head; Rodolfo Luis Torres has been a correspondent for Radio Fuentes. According to witnesses, five hours earlier four men had taken him forcibly from his home. The Special Rapporteur for Freedom of Expression reiterates to the Colombian authorities his concern for the physical integrity of journalists in Colombia, bearing in mind that three journalists have been assassinated in Colombia in less than three months. In addition to the recent assassination of Rodolfo Luis Torres are the violent deaths of Jaime Garzón, a humorist and popular entertainer with Radionet and Caracol Television, who was shot down last August 13, and Guzmán Quintero Torres, of the local daily El Pilón, assassinated last September 16. 

Freedom of expression is the cornerstone of democracy, and a fundamental step in building the peace in democracy sought by the Colombian people. Only through the free exchange of ideas and opinions will it be possible to build that peace. 

The assassination of journalists is the most brutal practice for restricting the freedom of expression in the Americas. With 18 journalists murdered in 1998, Latin America is the most dangerous region in the world for the practice of journalism. Unfortunately, due to the particular situation Colombia faces, it is the country with the largest number of journalists killed in recent years. 

The Inter-American Commission on Human Rights has argued that the non-existence of an effective and complete investigation into the assassination of a journalist and the imposition of criminal sanctions on the direct perpetrators and those who mastermind such killings has an especially detrimental impact on society. Impunity for such crimes not only has a chilling effect on all other journalists, but also on the citizenry, for it leads to the fear of denouncing arbitrary acts, abuses, or indeed any unlawful activity. 

The negative effect of the assassination of a journalist can only be countered by decisive action, by the states, to punish the persons responsible for assassinating journalists. In so doing, the states can send a strong and direct message to society that there will be no tolerance for those who commit violations of the right to freedom of expression. 

 

The Rapporteur hereby calls on the Government of Colombia to take all measures necessary to guarantee that this crime not remain in impunity, and at the same time to seek mechanisms to provide effective protection to all Colombian journalists, who are constantly threatened for carrying out their valuable function of keeping society informed.

Santiago A. Canton

Special Rapporteur for Freedom

of Expression in the Americas

Washington, D.C.

October 26, 1999


OFFICE OF THE SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESSION 

PREN/15/99 

PRESS COMMUNIQUE 

SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESSION CONDEMNS KIDNAPPING OF COLOMBIAN JOURNALIST 

Santiago A. Canton, the Special Rapporteur for Freedom of Expression of the OAS, has stated his profound concern over the kidnapping of Henry Romero, the Columbian photojournalist, by an armed dissident group known as the Army of National Liberation (ELN). The Reuters photographer was captured on Tuesday afternoon in the surrounding area of Cali, allegedly to explain why he published photographs showing the faces of various ELN members. 

The press freedom situation in Columbia is a serious source of concern for the Special Rapporteur since it is notorious in this hemisphere for having the highest number of its journalists killed in recent years. In fewer than three months, as many journalists have been murdered. Jaime Garzón, of Radionet and Caracol Televisión, and Guzmán Quintero Torres, of the daily newspaper El Pilón, were killed in August. Rodolfo Luis Torres, of Radio Fuentes, came to the same end the 21st of October. Dr. Canton has reiterated his concern for the safety of its journalists to the Columbian authorities. In addition to the grave acts mentioned above, it must be noted that Columbian journalists endure constant threats and intimidation, for the sole reason that they are carrying out their professional responsibility to inform the public. At the same time, as has been expressed on countless occasions by the Inter-American Commission on Human Rights, these threats, intimidations and murders constitute a clear violation of international and humanitarian law.

 The Office of the Rapporteur demands the immediate and unconditional release of the photojournalist, Henry Romero, and exhorts the Columbian authorities to use all means necessary to free him and to sanction those responsible for his kidnapping. Finally, the Rapporteur maintains that freedom of expression is the cornerstone of the democratic system; that only through the free debate of ideas and opinions can the peace sought by the Columbian people be achieved.

Santiago A. Canton

Special Rapporteur for Freedom

of Expression in the Americas

Washington, D.C.

October 27, 1999


OFFICE OF THE SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESSION 

PREN/16/99 

PRESS COMMUNIQUE 

RAPPORTEUR FOR FREEDOM OF EXPRESSION

VOICES CONCERN OVER KIDNAPPING OF JOURNALISTS

The Rapporteur for Freedom of Expression of the OAS, Santiago A. Canton, expresses his grave concern over the kidnapping of seven Colombian journalists and their driver, by armed dissident groups. David Sierra and Isabel Ballesteros of RCN Television, José Urbano Céspedes and Aldemar Cárdenas of Caracol Television, Pablo Camargo Alí of the daily El Pilón, Liber Gregorio Maestre, of the news program CMI, and Edgar de la Hoz, of the Bucaramanga daily Vanguardia Liberal, and the driver of the vehicle in which they were travelling were taken captive on Tuesday in Atánquez, department of Cesar, Colombia. 

The situation of the press in Colombia is a matter of serious concern to the Special Rapporteur for Freedom of Expression, since it has had the largest number of journalists killed in recent years of any country in the hemisphere. Three journalists have been assassinated in less than three months; in addition to this new kidnapping is that of photojournalist Henry Romero of Reuters news service, last October 26, and the kidnapping of seven other journalists who were taken captive last October 29. In both cases, the journalists have been released. Santiago A. Canton reiterates to the Colombian authorities his concern over the physical integrity of journalists in Colombia. In addition to this situation are the constant threats and intimidation to which Colombian journalists are subjected merely for carrying out their duty to keep society informed. In addition, and as noted on several occasions by the Inter-American Commission on Human Rights, these acts are clearly in violation of international humanitarian law. 

The Office of the Rapporteur for Freedom of Expression calls for the immediate and unconditional release of these persons, and urges the Colombian authorities to spare no effort in determining their whereabouts and investigating, placing on trial, and punishing the persons responsible. Finally, the Special Rapporteur for Freedom of Expression recalls that freedom of expression is the cornerstone of democracy, and that it is through the exchange ideas and opinions that it will be possible for the Colombian people to construct the peace they seek. 

Santiago A. Canton

Special Rapporteur for Freedom

of Expression in the Americas

Washington, D.C.

November 12, 1999


OFFICE OF THE SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESSION 

PREN/17/99 

PRESS COMMUNIQUE 

THE THREE DEFENDERS OF FREEDOM OF EXPRESSION WILL MEET IN LONDON 

On November 25 and 26, the three defenders and promoters of freedom of expression, representing the United Nations (UN), the Organization for Security and Co-operation in Europe (OSCE), and the Organization of American States (OAS), will meet in London. Abid Hussain, UN Special Rapporteur on Freedom of Opinion and Expression; Freimut Duve, OSCE Representative on Freedom of the Media; and Santiago A. Canton, OAS Special Rapporteur for Freedom of Expression, will participate in the international seminar "International Mechanisms for Promoting Freedom of Expression," organized by Article 19, a London-based non-governmental organization dedicated to defending and promoting freedom of expression. 

During this seminar, the rapporteurs for freedom of expression will analyze the main challenges facing the freedom of expression worldwide. In addition, they will report on their activities to defend and promote this right. They will also evaluate issues of interest, such as access to information, joint work with non-governmental organizations, the derogation of desacato laws (laws that punish offensive speech directed at public officials), new ways to strengthen the mandates of the rapporteurs, and joint initiatives. The seminar will conclude with a joint declaration on the main present and future issues involved in defending and promoting freedom of thought and expression in the world. 

"This will be an excellent opportunity to coordinate activities that lead to more effective defense of the freedom of expression worldwide," said Santiago A. Canton. "No doubt, the holding of the this event is an expression of the international interest in promoting freedom of expression, which is a fundamental right for the consolidation and deepening of democracy," he added.

Santiago A. Canton

Special Rapporteur for Freedom

of Expression in the Americas

Washington, D.C.

November 23, 1999


OFFICE OF THE SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESSION 

PREN/18/99 

PRESS COMUNIQUE 

RAPPORTEUR FOR FREEDOM OF EXPRESSION

REPUDIATES ASSASSINATION OF COLOMBIAN JOURNALISTS

The Rapporteur for Freedom of Expression of the OAS, Santiago A. Canton, expresses his total repudiation of the assassination of photojournalist Luis Alberto Rincón and cameraman Alberto Sánchez, both of the Canal Regional de Oriente. On November 28, the bodies of these journalists were found with several bullet wounds in a rural area of northwestern Colombia. According to witnesses, before the murder both journalists were kidnapped by unknown persons. This tragic event brings the number of journalists assassinated in Colombia this year to five, considering the earlier assassinations of journalists Rodolfo Luis Torres of Radio Fuentes, Jaime Garzón, a humorist and popular entertainer with Radionet and Caracol Television, and Guzmán Quintero Torres of the local daily El Pilón. The Special Rapporteur reiterates once against his deep concern over the dangerous working conditions faced by the Colombian press. 

The assassination of journalists is the most brutal practice for restricting the freedom of expression in the Americas. With 18 journalists murdered in 1998, Latin America is the most dangerous region in the world for the practice of journalism. Colombia is the country of the region with the largest number of journalists killed in recent years. 

In addition, as the Inter-American Commission on Human Rights has already stated on repeated occasions, such acts are a clear violation of international humanitarian law. Finally, the Special Rapporteur for Freedom of Expression recalls that freedom of expression is the cornerstone of democracy, and that it is through the exchange ideas and opinions that it will be possible for the Colombian people to construct the peace they seek. 

Santiago A. Canton

Special Rapporteur for Freedom of Expression

In the Americas

Washington, D.C.

December 1, 1999


OFFICE OF THE SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESSION 

PREN/19/99 

PRESS COMMUNIQUE

THE THREE DEFENDERS OF THE FREEDOM OF EXPRESSION

SIGNED A JOINT STATEMENT 

The three defenders and promoters of freedom of expression met for the first time in London on November 25 and 26 in the context of the international seminar "International Mechanisms for Promoting Freedom of Expression," organized by ARTICLE 19, a non-governmental organization based in London. At the conclusion of the meeting, Abid Hussain, United Nations Special Rapporteur on Freedom of Opinion and Expression (UN); Freimut Duve, Representative on Freedom of the Media for the Organization for Security and Co-operation in Europe (OSCE); and Santiago A. Canton, Special Rapporteur for Freedom of Expression of the Organization of American States (OAS), issued a joint statement. 

The three rapporteurs analyzed the main problems facing the freedom of expression in several countries and stated their concern over the existence of "impermissible pressure on the media." They made a commitment to hold annual meetings and to coordinate efforts to undertake joint activities to make possible more effective protection and dissemination of this right. "It was an excellent opportunity to exchange information on the grave situation of the freedom of expression in many countries," noted Santiago A. Canton. "No doubt, the commitment taken on will make it possible to more effectively defend and promote this right, which is fundamental for strengthening our democracies," he concluded. 

In the declaration, it was noted that the freedom of expression "is a fundamental international human right and a basic component of a civil society based on democratic principles." In addition, they reiterated the importance of having independent and pluralist media as essential for a free, open society, and for responsible government. At another point in the statement, it is noted that the absence of freedom of expression "can lead to economic stagnation and improper practices by both governments and businesses." 

Further, the statement refers to the right of all persons to have free access to information; the states are urged to derogate laws that limit the freedom of expression, for example the desacato laws, or laws that punish offensive speech directed at public officials; and a call is made to fight impunity in crimes against the freedom of expression.

A copy of the statement is attached.

Santiago A. Canton

Special Rapporteur for Freedom of Expression

In the Americas

Washington, D.C.

December 1, 1999


OFFICE OF THE SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESSION 

PREN/20/99 

PRESS COMUNIQUE 

SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESSION REPUDIATES ASSASSINATION OF COLOMBIAN JOURNALIST 

The Special Rapporteur for Freedom of Expression of the OAS, Santiago A. Canton, expresses his utmost repudiation of the assassination of Colombian journalist Pablo Emilio Medina. The body of the Garzón TV Channel cameraman was found on December 4 beside a highway between Gigante and Garzón. The 21 year-old journalist was murdered when he was covering an attack by the Revolutionary Forces of Colombia (FARC) on the town of Gigante. 

The Special Rapporteur reiterates to the Colombian authorities his concern for the physical safety of journalists in that country, bearing in mind that six journalists have been assassinated in less than four months. They were, apart from Pablo Emilio Medina, Luis Alberto Rincón and Alberto Sánchez, both of whom worked for Canal Regional de Oriente, killed on November 28; Rodolfo Luis Torres, a Radio Fuentes correspondent, gunned down on October 21; Guzmán Quintero Torres, chief editor of the El Pilón daily newspaper, assassinated on September 16; and Jaime Garzón, a comedian working for Radionet and Caracol Televisión, murdered on August 13. 

Murdering journalists is the most brutal of all methods of curtailing freedom of expression in the Americas. With 18 journalists assassinated in 1998, Latin America is the most dangerous region in the world for the practice of journalism. Within the region, Colombia is the country with the largest number of journalists killed. 

Furthermore, as the Inter-American Commission on Human Rights has reiterated on numerous occasions, actions of this type clearly violate international and humanitarian law. Finally, the Special Rapporteur points out once again that freedom of expression is the cornerstone of the democratic system and that the peace the Colombian people yearn for can be forged through the discussion of ideas and opinions.

Santiago A. Canton

Special Rapporteur for Freedom of Expression

in the Americas

Washington, D.C.

December 8, 1999


OFFICE OF THE SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESSION 

PR/21/2000 

PRESS COMUNIQUE

CONCERN OF THE INTER-AMERICAN HUMAN RIGHTS COMMISSION

OVER FREEDOM OF EXPRESSION IN THE ELECTORAL PROCESS IN PERU 

At the request of the Inter-American Commission on Human Rights (the Commission), during the current period of sessions, the Special Rapporteur for Freedom of Expression, Mr. Santiago A. Canton, informed the Commission about the serious situation regarding the freedom of expression in Peru. 

The Rapporteur informed the Commission about a large number of claims regarding violations of the right of freedom of expression. The analysis of these claims leads the Rapporteur to conclude that the effective exercise of free expression in Peru is seriously compromised due to the systematic use of intelligence services and security forces as instruments of harassment and persecution of investigative journalists and political opposition leaders. In addition to the abusive activities of the intelligence services, the failure of political authorities to recognize the problem should be noted. "These actions and omissions by the Peruvian State represent the fundamental pillars that sustain the current scheme of harassment and persecution of freedom of expression in Peru," the Rapporteur stated. 

The Rapporteur is particularly concerned about the effect these restrictions will have on the current electoral process. The importance of respect for freedom of expression and information becomes extremely critical in times when citizens need information to elect the individuals who will be responsible for governing them. The State must guarantee, without discrimination, the right to transmit and receive information in order to allow the full exercise of the political rights of all citizens to participate in the electoral process, either as candidates or voters. 

The Rapporteur informed the Commission about incidents that involved tailing journalists and politicians; intercepting phone calls; conducting smear campaigns against media and individuals who had expressed opinions critical of authorities in office; using judicial powers to silence radio and television programs with critical content; and pressuring media owners to avoid broadcasting unfavorable programming, as well as many cases involving threats to and attacks on journalists and politicians. 

According to the Rapporteur, "Peru lacks the necessary conditions to guarantee the complete exercise of the right to express political ideas that oppose or criticize the government through the mass media." The Rapporteur considers that the limitation to the right of freedom of expression in Peru "represents a serious obstacle for the normal development of the electoral process." 

The Commission received the report and expressed its deep concern for the integrity of the current electoral process considering the limited nature of freedom of expression in Peru. 

Santiago A. Canton

Special Rapporteur for Freedom of Expression

in the Americas

Washington, D.C.

March 8, 2000


INTERNATIONAL MECHANISMS FOR PROMOTING FREEDOM OF EXPRESSION

JOINT DECLARATION 

The UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression met for the first time in London on the 26th of November 1999 under the auspices of ARTICLE 19

We recall that freedom of expression is a fundamental international human right and a basic component of a civil society based on democratic principles. 

An independent and pluralistic media is essential to a free and open society and accountable government. Respect for freedom of the media in our Member States, although very different from country to country, leaves much to be desired. 

Certain States have continued to exert and allow impermissible pressure on the media in their respective countries. The levels of harassment might be different but the general aim is the same: to suppress pluralism and open debate on issues of concern to citizens. 

Freedom of expression is not only a fundamental human right in and of itself, but it has ramifications for economic development as well. The media has a "corrective" function by bringing to the public’s attention corruption and inequitable practises. The absence of free media can lead to economic stagnation and improper practises by both governments and businesses. 

Implicit in freedom of expression is the public’s right to open access to information and to know what governments are doing on their behalf, without which truth would languish and people’s participation in government would remain fragmented. 

The media should refrain from any advocacy of national, racial or religious hatred that constitutes incitement to violence or to any other similar action. 

In many countries laws are in place, such as criminal defamation laws, which unduly restrict the right to freedom of expression. We urge States to review these laws with a view to bringing them into line with their international obligations. 

We affirm that States must ensure an effective, serious and impartial judicial process, based on the rule of law, in order to combat impunity of perpetrators of attacks against freedom of expression. 

Abid Hussain, UN Special Rapporteur on Opinion and Expresion

Freimut Duve, OSCE Representative on Freedom of the Media

Santiago Canton, OAS Special Rapporteur of Freedom of Expression 

 

LEGAL FOUNDATION 

The President: 

The purpose of this draft law is to modify the provisions of the National Civil and Criminal Codes related to crimes of slander and libel, so as to bring them in line with the principles protecting the right to freedom of expression contained in the National Constitution and in International Human Rights Treaties. This come about in the context of a proposed friendly settlement which the Argentine Government compromised itself to carry on with the Journalists’ Association [Asociación Periodistas] at the hearing held on October 1, 1999, in case 12,128 of the Inter-American Commission on Human Rights (hereinafter IACHR). 

At that hearing, the Argentine State pledged look for a solution to do away with restrictions to freedom of expression inherent in their legal system. It was this type of agreement that made it possible to abolish the crime of desacato [crime of insulting or causing injury to a public official] from the criminal code in 1993. 

The proposed provisions, which were drafted and discussed together with the members and advisors of the Journalists’ Association, follow in part the arguments developed by Argentina’s Supreme Court of Justice in several of its judgments, in which it set forth certain principles which confirm the essential role of freedom of expression in sustaining a democratic system of government, but which are also meant to protect the right of persons to have their honor and reputation respected. These rights are also expressly recognized in Articles 11 and 13 of the American Convention on Human Rights. In addition, consideration was given to the interpretation given to human rights conventions by different international courts, which should serve as a basis for interpreting domestic laws, pursuant to the High Court’s opinion handed down in the "Giroldi", "Bramajo," and "Acosta" cases. 

The proposed text is therefore based on the fundamental premise that the honor of public officials and public figures deserves a very different type of protection from that offered to private persons. 

As far as public officials and figures are concerned, it seems clear that the circumstance of having voluntarily placed themselves in the public eye, a defining characteristic of their function, means that it is reasonable to believe that their right to have their honor respected would merit less protection than that of private persons. Furthermore, the fact that public officials and public entities generally have easy access to the media, and that this enables them to challenge any affronts to their honor and personal reputation, is another reason to provide less legal protection for their honor. 

On this point, the proposed text has followed uncontested case law of the Supreme Court, which has held the view that lesser legal protection for the honor of public officials and public figures is vital to the subsistence of a democratic republic (refer to the "Costa" case, for instance, Judgment 310:508). 

Consequently, an attempt was made to apply this principle in the various sections of the proposed text, as you will see from what follows. 

The basic concept underlying the proposed text’s attempt to obtain the correct results from the "weak" legal protection afforded to public officials and similar such persons in the event of criticism of any kind concerning their work is that only civil sanctions would apply to cases of false information given with actual malice, in the sense given to this offense in the rulings of the United States Supreme Court (i.e., "New York Times v. Sullivan" [376 U.S. 254]) which, at least in some cases, have been received by our High Court. 

It is therefore proposed that four new paragraphs, which reflect the doctrine summarized in the preceding paragraphs, be added to Article 1089 of the Civil Code pertaining to defamation, libel and slander. 

In this regard, reference should be made to several reservations or exceptions included in the new provisions. The first two new paragraphs (2º and 3º of Art. 1089, Civil Code) contain the rules pertaining to false or incorrect information, which, in the event actual malice is proven, provide for redress or reparations, while the third paragraph (4º of Art. 1089, Civil Code) excludes liability in the case of value judgments of any kind. In fact, the criticism and debate of public affairs easily lead to causticity, asperity, and even insults, which are frequently manifestations of indignation, a key ethical driving force for maintaining and developing a democratic system. 

Finally, the fourth paragraph to be added to the law (5º of Art. 1089, Civil Code) provides for separate treatment for cases involving the faithful reproduction of information from another source in which the source is exempt from any civil liability, when the source is given. 

This represents an effort to establish specific legal provisions to reflect the National Supreme Court’s doctrine as first adopted in the "Campillay" case (Judgment 308:789). According to that doctrine, the faithful reproduction of information derived from an official source does not create liability, even if that information proves to be incorrect and could adversely affect the honor of an individual. This doctrine was later applied by the Supreme Court to cases in which the information source was private (on this point, see the "Acuña" case, "Argentine Case Law", journal of 9/7/97). 

Following the arguments established in the Supreme Court’s case law, the draft carefully draws a distinction between the "Campillay" doctrine and the doctrine on which the U.S. case "New York Times v. Sullivan" is based, known as the doctrine of "actual malice." 

Thus, pursuant to "Campillay", whether or not the information is true or false is irrelevant to the purpose for obtaining constitutional protection. It is enough that the informant has faithfully reproduced information from a source and has specifically cited it to absolve that person from any responsibility.

The doctrine of "actual malice," however, applies to the assumption of incorrect information by the informant, which does not result in the liability of the informant unless it is proven that in providing the false information, the person acted with criminal intent or gross fault. 

Thus, this last doctrine was included in a separate section of the draft provisions from the one containing the "Campillay" doctrine, to highlight the aforesaid difference between the two. 

As for criminal law, it was decided that cases related to the exercise of freedom of criticism would be excluded from criminal provisions. To this end, the present Article 111 of the Criminal Code is deleted, as it is incompatible with the constitutional principles on the subject. It is replaced by a new text that establishes impunity in the case of information, value judgments, and humorous expressions published by the media on topics of public interest referring to public officials or similar such persons. 

In this regard, the IACHR has maintained as follows: "The state’s obligation to protect the rights of others is fulfilled by establishing statutory protection from intentional attacks on the honor and reputation of persons based on civil action, and by promulgating laws that guarantee the right of rectification or reply. In this regard, the state shall guarantee protection of the private life of all individuals, without abusing its coercive powers to repress an individual’s freedom of thought and expression. 

In conclusion, the Commission understands that the use of such powers to limit the expression of ideas lends itself to abuse, as a means of silencing unpopular opinions and ideas, to restrict a debate that is fundamental to the effective operation of democratic institutions. Any laws that penalize the expression of ideas that do not incite to anarchic violence are incompatible with freedom of expression and thought as established in Article 13, and with the fundamental objective of the American Convention to protect and guarantee a pluralistic and democratic society." (cf., IACHR Report, 1994, published February 1995, OAS General Secretariat) 

Of course, whenever the circumstances referred to in the new Art. 111 of the Criminal Code do not apply, slander and libel continues to be punishable by law, as will their dissemination by the media. This is specified in the first paragraph of the new text to replace the present Article 113 of the Criminal Code, along with a second explanatory paragraph. 

The purpose of the third paragraph of the new Article 113 is to make it clear that the right to freely criticize and publicly censure public officials and similar persons is designed to cover all inhabitants of the country, so that the free exercise of that right, whether by the media or others, is expressly guaranteed.

Finally, it is important to clarify that the present Article 114 of the Criminal Code is meant to be interpreted in accordance with the proposed reform, taking special account of the provisions of Articles 111 and 113. 

Although it would have been advisable to reform that article, it proved to be impossible, since the National Congress is not the local legislature for the City of Buenos Aires and the national territories no longer exist, and so it does not have jurisdiction to establish laws that restrict or regulate freedom of the press. 

As is evident, the proposed text is designed to adapt domestic laws to international law, with a view to guaranteeing the maximum freedom of expression, naturally within the framework defined by human rights conventions. 

This will allow for cooperation with regard to the friendly settlement which the national government is committed to seek, and will prevent our Republic from incurring international liability for failure to observe the mandates it has assumed upon signing international human rights treaties, pursuant to the opinions given by our Supreme Court (Judgment 315:1492). 

This proposed text is therefore presented on the understanding that as legislators of the Argentine State, we have the duty to "guarantee" the free and full exercise of the rights established in constitutionalized human rights conventions, since "to guarantee entails a duty by the state to adopt all the measures required to remove any obstacles in the way so that individuals can enjoy the rights recognized under the Convention." (Advisory Opinion of the Inter-American Court on Human Rights No 11/90 of August 10, 1990 –"Exceptions to exhaustion of domestic remedies" (Supreme Court of Justice of the Nation, "Giroldi" case, judgment of April 7, 1995). On these grounds, I request a debate on and subsequent approval of this proposed text. 

ARTICLE 1°.- The following text shall be included as the second, third, fourth, and fifth paragraphs of Article 1089 of the Civil Code: 

"Civil liability shall not be incurred as a result of the formulation or dissemination of truthful information on events of public interest referring to public officials, public figures, or private persons, whenever the latter have been voluntarily involved in issues of public interest. 

"Civil liability shall not be incurred as a result of the dissemination by any of the media of incorrect information on events or facts of public interest that may be detrimental to the honor of persons, whenever such information refers to public officials or public figures and private persons, provided the latter were voluntarily involved in matters of public interest. In these cases, civil liability shall be incurred if the party affected by the information proves that it was untrue and that there was criminal intent or gross fault and negligence on the part of the author. These conditions shall be considered as having been met only in the event that the offended party succeeds in demonstrating the misrepresentation or untruth of the information, and the actual malice with which the information was disseminated, despite the fact that the author knew it was untrue or acted in rash disregard for the truth. 

"The formulation or dissemination by any of the media of value judgments referring to public officials or public figures and to private persons, whenever the latter are involved in matters of relevant public interest, shall be exempt from civil liability. Value judgments shall be understood to include humorous expressions as well.

"In the cases set forth in the second, third, and fourth paragraphs, any persons whose action is confined to the faithful reproduction of information already disseminated by other media or by public officials or intermediate entities of any kind, and even by private persons, if the source is given, shall be exempt from civil liability. If the source is kept in reserve, the provisions of the second, third, and fourth paragraphs of this article shall apply."


ARTICLE 2°.- Article 111 of the National Criminal Code shall be replaced by the following text: 

"The dissemination by any of the media of information or value judgments pertaining to acts or events of public interest related to public officials or figures or private persons, provided the latter have been voluntarily involved in matters of relevant public interest, shall not be punished under the law. Value judgments shall be understood to cover humorous expressions as well." 

ARTICLE 3°.- Article 113 of the National Criminal Code shall be replaced by the following text: 

"Whoever in any way reproduces slander or libel inferred by another, with full knowledge of its libelous or slanderous nature, shall be punished as the author of the slander or libel in question, except in the circumstances stipulated in Article 111.

Any persons who faithfully reproduce information or value judgments on acts or events of public interest already disseminated by other media or by public officials or intermediate entities of any kind, or by a private person, shall not be punished under the law. 

Critical statements made in public by any person shall not be punished under Articles 109 and 110, provided said statements are consistent with the other terms and conditions contained in Article 111 of the Criminal Code." 

ARTICLE 4. [end of text.]


DECLARATION OF CHAPULTEPEC 

PREAMBLE 

On the threshold of a new millennium, the Americas envision a future rooted in democracy. A political opening has taken hold. Citizens have a heightened awareness of their rights. More than at any time in our history regular elections, governments, parliaments, political parties, labor unions, associations and social groups of every kind reflect the hopes of our people. 

In this environment of democratization, several developments engender optimism but also suggest prudence. Institutional crises, Inequalities, backwardness, unresolvable frustrations, the search for easy solutions, failure to grasp the nature of democracy and special interest groups constantly threaten the advancements made. They also represent potential hurdles to further progress. 

That is why we who share this hemisphere, from Alaska to Tierra del Fuego, must consolidate the prevailing public freedoms and human rights. 

Democratic rule must be embodied in modern institutions that represent and respect the citizenry; it must also guide daily life. Democracy and freedom, inseparably paired, will flourish with strength and stability only if they take root in the men and women of our continent. 

Without democracy and freedom, the results are predictable: Individual and social life is stunted, group interaction is curtailed, material progress is distorted, the possibility of change is halted, justice is demeaned and human advancement becomes mere fiction. Freedom must not be restricted in the quest for any other goal. It stands alone, yet has multiple expressions; it belongs to citizens, not to government. 

Because we share this conviction, because we have faith in the creative force of our people and because we are convinced that our principles and goals must be freedom and democracy, we openly support their most forthright and robust manifestation: Freedom of expression and of the press, whatever the medium of communication. 

The exercise of democracy can neither exist nor be reproduced without these. We, the signatories of this declaration, represent different backgrounds and dreams. We take pride in the plurality and diversity of our cultures, considering ourselves fortunate that they merge into the one element that nurtures their growth and creativity: Freedom of expression, the driving force and basis of mankind’s fundamental rights. 

A free society can thrive only through free expression and the exchange of ideas, the search for and the dissemination of information, the ability to investigate and question, to propound and react, to agree and disagree, to converse and confront, to publish and broadcast. Only by exercising these principles will it be possible to guarantee individuals and groups their right to receive impartial and timely information. Only through open discussion and unfettered information will it be possible to find answers to the great collective problems, to reach consensus, to have development benefit all sectors, to practice social justice and to advance the quest for equality. We therefore vehemently reject assertions which would define freedom and progress, freedom and order, freedom and stability, freedom and justice, freedom and the ability to govern as mutually exclusive values. 

Without freedom there can be no true order, stability and justice. And without freedom of expression there can be no freedom. Freedom of expression and the seeking, dissemination and collection of information can be exercised only if freedom of the press exists. 

We know that not every statement and item of information can find its way into the media. We know that the existence of press freedom does not automatically guarantee unrestricted freedom of expression. But we also know that a free press favors an environment that nurtures freedom of expression and thereby benefits all other public freedoms. 

Without an independent media, assured of the guarantees to operate freely, to make decisions and to act on them fully, freedom of expression cannot be exercised. A free press is synonymous with free expression. 

Wherever the media can function unhindered and determine their own direction and manner of serving the public, there is a blossoming of the ability to seek information, to disseminate it without restraints, to question it without fear and to promote the free exchange of ideas and opinions. But wherever freedom of the press is curtailed, for whatever reasons, the other freedoms vanish. 

After a period when attempts were made to legitimize government control over news outlets, it is gratifying to be able to work together to defend freedom. Many men and women worldwide join us in this task. But opposition remains widespread. Our continents are no exception. There are still counties whose despotic governments abjure every freedom, particularly those freedoms related to expression. Criminals, terrorists and drug traffickers still threaten, attack and murder journalists. 

But that is not the only way to harm a free press and free expression. The temptation to control and regulate has led to decisions that limit the independent action of the media, of journalists and of citizens who wish to seek and disseminate information and opinions. 

Politicians who avow their faith in democracy are often intolerant of public criticism. Various social sectors assign to the press nonexistent flaws. Judges with limited vision order journalists to reveal sources that should remain in confidence. Overzealous officials deny citizens access to public information. Even the constitutions of some democratic countries contain elements of press restriction. 

While defending a free press and rejecting outside interference, we also champion a press that is responsible and involved, a press aware of the obligations that the practice of freedom entails. 

PRINCIPLES 

A free press enables societies to resolve their conflicts, promote their well-being and protect their liberty. No law or act of government may limit freedom of expression or of the press, whatever the medium. 

Because we are fully conscious of this reality and accept it with the deepest conviction, and because of our firm commitment to freedom, we sign this declaration, whose principles follow. 

1. 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. 

2. Every person has the right to seek and receive information, express opinions and disseminate them freely. No one may restrict or deny these rights. 

3. The authorities must be compelled by law to make available in a timely and reasonable manner the information generated by the public sector. No journalist may be forced to reveal his or her sources of information. 

4. Freedom of expression and of the press are severely limited by murder, terrorism, kidnapping, intimidation, the unjust imprisonment of journalists, the destruction of facilities, violence of any kind and impunity for perpetrators. Such acts must be investigated promptly and punished harshly. 

5. Prior censorship, restrictions on the circulation of the media or dissemination of their reports, forced publication of information, the imposition of obstacles to the free flow of news, and restrictions on the activities and movements of journalists directly contradict freedom of the press. 

6. The media and journalists should neither be discriminated against nor favored because of what they write or say. 

7. Tariff and exchange policies, licenses for the importation of paper or news-gathering equipment, the assigning of radio and television frequencies and the granting or withdrawal of government advertising may not be used to reward or punish the media or individual journalists. 

8. The membership of journalists in guilds, their affiliation to professional and trade associations and the affiliation of the media with business groups must be strictly voluntary.

9. The credibility of the press is linked to its commitment to truth, to the pursuit of accuracy, fairness and objectivity and to the clear distinction between news and advertising. The attainment of these goals and the respect for ethical and professional values may not be imposed. These are the exclusive responsibility of journalists and the media. In a free society, it is public opinion that rewards or punishes. 

10. No news medium nor journalist may be punished for publishing the truth or criticizing or denouncing the government. 

The struggle for freedom of expression and of the press is not a one-day task; it is an ongoing commitment. It is fundamental to the survival of democracy and civilization in our hemisphere. Not only is this freedom a bulwark and an antidote against every abuse of authority, it is society's lifeblood. Defending it day upon day is honoring our history and controlling our destiny. To these principles we are committed.


THE PUBLIC'S RIGHT TO KNOW PRINCIPLES ON FREEDOM OF INFORMATION LEGISLATION 

June 1999

PREFACE 

Information is the oxygen of democracy. If people do not know what is happening in their society, if the actions of those who rule them are hidden, then they cannot take a meaningful part in the affairs of that society. But information is not just a necessity for people – it is an essential part of good government. Bad government needs secrecy to survive. It allows inefficiency, wastefulness and corruption to thrive. As Amartya Sen, the Nobel Prize-winning economist has observed, there has never been a substantial famine in a country with a democratic form of government and a relatively free press. Information allows people to scrutinise the actions of a government and is the basis for proper, informed debate of those actions. 

Most governments, however, prefer to conduct their business in secret. In Swahili, one of the words for government means "fierce secret". Even democratic governments would rather conduct the bulk of their business away from the eyes of the public. And governments can always find reasons for maintaining secrecy – the interests of national security, public order and the wider public interest are a few examples. Too often governments treat official information as their property, rather than something which they hold and maintain on behalf of the people. 

That is why ARTICLE 19 has produced this set of international principles – to set a standard against which anyone can measure whether domestic laws genuinely permit access to official information. They set out clearly and precisely the ways in which governments can achieve maximum openness, in line with the best international standards and practice. 

Principles are important as standards but on their own they are not enough. They need to be used – by campaigners, by lawyers, by elected representatives and by public officials. They need applying in the particular circumstances that face each society, by people who understand their importance and are committed to transparency in government. We publish these principles as a contribution to improving governance and accountability and strengthening democracy across the world.

BACKGROUND 

These Principles set out standards for national and international regimes which give effect to the right to freedom of information. They are designed primarily for national legislation on freedom of information or access to official information but are equally applicable to information held by inter-governmental bodies such as the United Nations and the European Union. 

The Principles are based on international and regional law and standards, evolving state practice (as reflected, inter alia, in national laws and judgments of national courts) and the general principles of law recognised by the community of nations. They are the product of a long process of study, analysis and consultation overseen by ARTICLE 19, drawing on extensive experience and work with partner organisations in many countries around the world.

PRINCIPLE 1. MAXIMUM DISCLOSURE 

Freedom of information legislation should by guided by the principle of maximum disclosure 

The principle of maximum disclosure establishes a presumption that all information held by public bodies should be subject to disclosure and that this presumption may be overcome only in very limited circumstances (see Principle 4). This principle encapsulates the basic rationale underlying the very concept of freedom of information and ideally it should be provided for in the Constitution to make it clear that access to official information is a basic right. The overriding goal of legislation should be to implement maximum disclosure in practice. 

Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information. Everyone present in the territory of the country should benefit from this right. The exercise of this right should not require individuals to demonstrate a specific interest in the information. Where a public authority seeks to deny access to information, it should bear the onus of justifying the refusal at each stage of the proceedings. In other words, the public authority must show that the information which it wishes to withhold comes within the scope of the limited regime of exceptions, as detailed below. 

Definitions 

Both ‘information’ and ‘public bodies’ should be defined broadly. ‘Information’ includes all records held by a public body, regardless of the form in which the information is stored (document, tape, electronic recording and so on), its source (whether it was produced by the public body or some other body) and the date of production. The legislation should also apply to records which have been classified, subjecting them to the same test as all other records. 

For purposes of disclosure of information, the definition of ‘public body’ should focus on the type of service provided rather than on formal designations. To this end, it should include all branches and levels of government including local government, elected bodies, bodies which operate under a statutory mandate, nationalised industries and public corporations, non-departmental bodies or quangos (quasi non-governmental organisations), judicial bodies, and private bodies which carry out public functions (such as maintaining roads or operating rail lines). Private bodies themselves should also be included if they hold information whose disclosure is likely to diminish the risk of harm to key public interests, such as the environment and health. Inter-governmental organisations should also be subject to freedom of information regimes based on the principles set down in this document.

Destruction of records 

To protect the integrity and availability of records, the law should provide that obstruction of access to, or the willful destruction of records is a criminal offence. The law should also establish minimum standards regarding the maintenance and preservation of records by public bodies. Such bodies should be required to allocate sufficient resources and attention to ensuring that public record-keeping is adequate. In addition, to prevent any attempt to doctor or otherwise alter records, the obligation to disclose should apply to records themselves and not just the information they contain. 

PRINCIPLE 2. OBLIGATION TO PUBLISH 

Public bodies should be under an obligation to publish key information 

Freedom of information implies not only that public bodies accede to requests for information but also that they publish and disseminate widely documents of significant public interest, subject only to reasonable limits based on resources and capacity. Which nformation should be published will depend on the public body concerned. The law should establish both a general obligation to publish and key categories of information that must be published. 

Public bodies should, as a minimum, be under an obligation to publish the following categories of information: 

PRINCIPLE 3. PROMOTION OF OPEN GOVERNMENT 

Public bodies must actively promote open government 

Informing the public of their rights and promoting a culture of openness within government are essential if the goals of freedom of information legislation are to be realised. Indeed, experience in various countries shows that a recalcitrant civil service can undermine even the most progressive legislation. Promotional activities are, therefore, an essential component of a freedom of information regime. This is an area where the particular activities will vary from country to country, depending on factors such as the way the civil service is organised, key constraints to the free disclosure of information, literacy levels and the degree of awareness of the general public. The law should require that adequate resources and attention are devoted to the question of promoting the goals of the legislation. 

Public education 

As a minimum, the law should make provision for public education and the dissemination of information regarding the right to access information, the scope of information which is available and the manner in which such rights may be exercised. In countries where newspaper distribution or literacy levels are low, the broadcast media are a particularly important vehicle for such dissemination and education. Creative alternatives, such as town meetings or mobile film units, should be explored. Ideally, such activities should be undertaken both by individual public bodies and a specially designated and adequately funded official body – either the one which reviews requests for information, or another body established specifically for this purpose. 

Tackling the culture of official secrecy 

The law should provide for a number of mechanisms to address the problem of a culture of secrecy within government. These should include a requirement that public bodies provide freedom of information training for their employees. Such training should address the importance and scope of freedom of information, procedural mechanisms for accessing information, how to maintain and access records efficiently, the scope of whistleblower protection, and what sort of information a body is required to publish. 

The official body responsible for public education should also play a role in promoting openness within government. Initiatives might include incentives for public bodies that perform well, campaigns to address secrecy problems and communications campaigns encouraging bodies that are improving and criticising those which remain excessively secret. Another possibility is the production of an annual report to Parliament and/or Parliamentary bodies on remaining problems and achievements, which might also include measures taken to improve public access to information, any remaining constraints to the free flow of information which have been identified and measures to be taken in the year ahead. 

Public bodies should be encouraged to adopt internal codes on access and openness. 

PRINCIPLE 4. LIMITED SCOPE OF EXCEPTIONS 

Exceptions should be clearly and narrowly drawn and subject to strict "harm" and "public interest" tests 

All individual requests for information from public bodies should be met unless the public body can show that the information falls within the scope of the limited regime of exceptions. A refusal to disclose information is not justified unless the public authority can show that the information meets a strict three-part test. 

No public bodies should be completely excluded from the ambit of the law, even if the majority of their functions fall within the zone of exceptions. This applies to all branches of government (that is, the executive, legislative and judicial branches) as well as to all functions of government (including, for example, functions of security and defence bodies). Non-disclosure of information must be justified on a case-by-case basis. 

Restrictions whose aim is to protect governments from embarrassment or the exposure of wrongdoing can never be justified. 

Legitimate aims justifying exceptions

 A complete list of the legitimate aims which may justify non-disclosure should be provided in the law. This list should include only interests which constitute legitimate grounds for refusing to disclose documents and should be limited to matters such as law enforcement, privacy, national security, commercial and other confidentiality, public or individual safety, and the effectiveness and integrity of government decision-making processes. 

Exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest. They should be based on the content, rather than the type, of the document. To meet this standard exceptions should, where relevant, be time-limited. For example, the justification for classifying information on the basis of national security may well disappear after a specific national security threat subsides. 

Refusals must meet a substantial harm test 

It is not sufficient that information simply fall within the scope of a legitimate aim listed in the law. The public body must also show that the disclosure of the information would cause substantial harm to that legitimate aim. In some cases, disclosure may benefit as well as harm the aim. For example, the exposure of corruption in the military may at first sight appear to weaken national defence but actually, over time, help to eliminate the corruption and strengthen the armed forces. For non-disclosure to be legitimate in such cases, the net effect of disclosure must be to cause substantial harm to the aim. 

Overriding public interest 

Even if it can be shown that disclosure of the information would cause substantial harm to a legitimate aim, the information should still be disclosed if the benefits of disclosure outweigh the harm. For example, certain information may be private in nature but at the same time expose high-level corruption within government. In such cases, the harm to the legitimate aim must be weighed against the public interest in having the information made public. Where the latter is greater, the law should provide for disclosure of the information.

 PRINCIPLE 5. PROCESSES TO FACILITATE ACCESS 

Requests for information should be processed rapidly and fairly and an independent review of any refusals should be available 

A process for deciding upon requests for information should be specified at three different levels: within the public body; appeals to an independent administrative body; and appeals to the courts. Where necessary, provision should be made to ensure full access to information for certain groups, for example those who cannot read or write, those who do not speak the language of the record, or those who suffer from disabilities such as blindness. 

All public bodies should be required to establish open, accessible internal systems for ensuring the public’s right to receive information. Generally, bodies should designate an individual who is responsible for processing such requests and for ensuring compliance with the law. 

Public bodies should also be required to assist applicants whose requests relate to published information, or are unclear, excessively broad or otherwise in need of reformulation. On the other hand, public bodies should be able to refuse frivolous or vexatious requests. Public bodies should not have to provide individuals with information that is contained in a publication, but in such cases the body should direct the applicant to the published source.

The law should provide for strict time limits for the processing of requests and require that any refusals be accompanied by substantive written reasons. 

Appeals 

Wherever practical, provision should be made for an internal appeal to a designated higher authority within a public authority who can review the original decision. 

In all cases, the law should provide for an individual right of appeal to an independent administrative body from a refusal by a public body to disclose information. This may be either an existing body, such as an Ombudsman or Human Rights Commission, or one specially established for this purpose. In either case, the body must meet certain standards and have certain powers. Its independence should be guaranteed, both formally and through the process by which the head and/or board is/are appointed. 

Appointments should be made by representative bodies, such as an all-party parliamentary committee, and the process should be open and allow for public input, for example regarding nominations. Individuals appointed to such a body should be required to meet strict standards of professionalism, independence and competence, and be subject to strict conflict of interest rules.

 The procedure by which the administrative body processes appeals over requests for information which have been refused should be designed to operate rapidly and cost as little as is reasonably possible. This ensures that all members of the public can access this procedure and that excessive delays do not undermine the whole purpose of requesting information in the first place. 

The administrative body should be granted full powers to investigate any appeal, including the ability to compel witnesses and, importantly, to require the public body to provide it with any information or record for its consideration, in camera where necessary and justified. 

Upon the conclusion of an investigation, the administrative body should have the power to dismiss the appeal, to require the public body to disclose the information, to adjust any charges levied by the public body, to fine public bodies for obstructive behaviour where warranted and/or to impose costs on public bodies in relation to the appeal. 

The administrative body should also have the power to refer to the courts cases which disclose evidence of criminal obstruction of access to or willful destruction of records. 

Both the applicant and the public body should be able to appeal to the courts against decisions of the administrative body. Such appeals should include full power to review the case on its merits and not be limited to the question of whether the administrative body has acted reasonably. This will ensure that due attention is given to resolving difficult questions and that a consistent approach to freedom of expression issues is promoted. 

PRINCIPLE 6. COSTS 

Individuals should not be deterred from making requests for information by excessive costs 

The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants, given that the whole rationale behind freedom of information laws is to promote open access to information. It is well established that the long-term benefits of openness far exceed the costs. In any case, experience in a number of countries suggests that access costs are not an effective means of offsetting the costs of a freedom of information regime.

 Differing systems have been employed around the world to ensure that costs do not act as a deterrent to requests for information. In some jurisdictions, a two-tier system has been used, involving flat fees for each request, along with graduated fees depending on the actual cost of retrieving and providing the information. The latter should be waived or significantly reduced for requests for personal information or for requests in the public interest (which should be presumed where the purpose of the request is connected with publication). In some jurisdictions, higher fees are levied on commercial requests as a means of subsidising public interest requests. 

PRINCIPLE 7. OPEN MEETINGS 

Meetings of public bodies should be open to the public 

Freedom of information includes the public’s right to know what the government is doing on its behalf and to participate in decision-making processes. Freedom of information legislation should therefore establish a presumption that all meetings of governing bodies are open to the public.

 "Governing" in this context refers primarily to the exercise of decision-making powers, so bodies which merely proffer advice would not be covered. Political committees – meetings of members of the same political party – are not considered to be governing bodies. 

On the other hand, meetings of elected bodies and their committees, planning and zoning boards, boards of public and educational authorities and public industrial development agencies would be included. 

A "meeting" in this context refers primarily to a formal meeting, namely the official convening of a public body for the purpose of conducting public business. Factors that indicate that a meeting is formal are the requirement for a quorum and the applicability of formal procedural rules. 

Notice of meetings is necessary if the public is to have a real opportunity to participate and the law should require that adequate notice of meetings is given sufficiently in advance to allow for attendance. 

Meetings may be closed, but only in accordance with established procedures and where adequate reasons for closure exist. Any decision to close a meeting should itself be open to the public. The grounds for closure are broader than the list of exceptions to the rule of disclosure but are not unlimited. Reasons for closure might, in appropriate circumstances, include public health and safety, law enforcement or investigation, employee or personnel matters, privacy, commercial matters and national security. 

PRINCIPLE 8. DISCLOSURE TAKES PRECEDENCE 

Laws which are inconsistent with the principle of maximum disclosure should be amended or repealed 

The law on freedom of information should require that other legislation be interpreted, as far as possible, in a manner consistent with its provisions. Where this is not possible, other legislation dealing with publicly-held information should be subject to the principles underlying the freedom of information legislation. 

The regime of exceptions provided for in the freedom of information law should be comprehensive and other laws should not be permitted to extend it. In particular, secrecy laws should not make it illegal for officials to divulge information which they are required to disclose under the freedom of information law. 

Over the longer term, a commitment should be made to bring all laws relating to information into line with the principles underpinning the freedom of information law. 

In addition, officials should be protected from sanctions where they have, reasonably and in good faith, disclosed information pursuant to a freedom of information request, even if it subsequently transpires that the information is not subject to disclosure. Otherwise, the culture of secrecy which envelopes many governing bodies will be maintained as officials may be excessively cautious about requests for information, to avoid any personal risk. 

PRINCIPLE 9. PROTECTION FOR WHISTLEBLOWERS

 Individuals who release information on wrongdoing – whistleblowers – must be protected 

Individuals should be protected from any legal, administrative or employment-related sanctions for releasing information on wrongdoing. 

"Wrongdoing" in this context includes the commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty, or serious maladministration regarding a public body. It also includes a serious threat to health, safety or the environment, whether linked to individual wrongdoing or not. Whistleblowers should benefit from protection as long as they acted in good faith and in the reasonable belief that the information was substantially true and disclosed evidence of wrongdoing. Such protection should apply even where disclosure would otherwise be in breach of a legal or employment requirement. 

In some countries, protection for whistleblowers is conditional upon a requirement to release the information to certain individuals or oversight bodies. While this is generally appropriate, protection should also be available, where the public interest demands, in the context of disclosure to other individuals or even to the media. 

The "public interest" in this context would include situations where the benefits of disclosure outweigh the harm, or where an alternative means of releasing the information is necessary to protect a key interest. This would apply, for example, in situations where whistleblowers need protection from retaliation, where the problem is unlikely to be resolved through formal mechanisms, where there is an exceptionally serious reason for releasing the information, such as an imminent threat to public health or safety, or where there is a risk that evidence of wrongdoing will otherwise be concealed or destroyed.

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