program the inter-american human rights system

The right to freedom of expression andaccess to information

in the Inter-American human rights system

Office of the Special Rapporteur for Freedom of ExpressionInter-American Commission on Human Rights

PROGRAM The Inter-American human rights system

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

Advances in jurisprudence1. Prohibition of prior censorship2. Prohibition of desacato laws3. Proportionality of subsequent liability 4. Prohibition of indirect restrictions on speech5. Access to information 6. Violence against media workers

Challenges: The hemispheric agenda for the defense of freedom of expression

Inter-American freedom of expression standards1. Protection of journalists and the fight against impunity: prevention, protection and the pursuit of justice2. Subsequent liability3. Pluralism and diversity in the democratic debate4. The right to access to information


The Inter-American human rights system


Organs of the Inter-American Human Rights System

Inter-American Commission• Created 1959• American Convention: 1969• Based in Washington D.C.• 7 members – comissioners• Commissioners elected by the

General Assembly of the OAS• Studies cases/situations concerning

all OAS member states


http://www.iachr.org/

http://www.iachr.org/

http://www.cidh.oas.org/Basicos/English/Basic3.American%20Convention.htm


http://www.oas.org/Photos/2008/10Oct/26/pages/_0008308.htm

Organs of the Inter-American Human Rights System• Functions of the Inter-American Commission

– Contentious jurisdiction• Individual cases

– Cases based on violations of the American Convention on Human Rights

– Admissibility and merits phases– Prior exhaustion of domestic remedies is required

• Precautionary measures– Reports

• Country reports• Thematic reports

– Human rights promotion • Declarations• Press releases• Public hearings• Rapporteurships

Relatoría Especial para la Libertad de ExpresiónCOMISIÓN INTERAMERICANA DE DERECHOS HUMANOS


Organs of the Inter-American human rights system • Rapporteurships of the

Inter-American Commission– Special Rapporteurship for Freedom of

Expression– Women’s rights– Migrant workers and their families – Human rights defenders– Indigenous peoples – Persons deprived of their liberty – Afro-descendents and racial

discrimination– Rights of the child



Inter-American Court• Created by the American

Convention (1969)

• Begins functioning 1979

• Based in San José, Costa Rica

• 7 members – judges

• Judges elected by the states parties to the American Convention on Human Rights




• Functions of the Inter-American Court– Contentious Jurisdiction

• Individual cases– Cases based on violations of the American Convention

that have been decided by the IACHR – Against the 21 States that have accepted the

jurisdiction of the Inter-American Court Proceedings before the IACHR must have been exhausted

• Provisional measures

– Advisory opinions


Legal frameworkof the inter-American human rights system • OAS Charter (1948)• American Declaration of the Rights and Duties of Man (1948)• American Convention on Human Rights (1969)

– Article 13: Freedom of thought and expression – Declaration of Principles on Freedom of Expression

• Specialized treaties on:• Economic, social and cultural rights• Abolition of the death penalty• Violence against women• Forced disappearance • Torture • Discrimination against persons with disabilities

• Jurisprudence of the IACHR and Inter-American Court


http://www.cidh.oas.org/Basicos/English/Basic22.Charter%20OAS.htm

http://www.cidh.oas.org/Basicos/English/Basic2.American%20Declaration.htm


http://www.cidh.oas.org/relatoria/showarticle.asp?artID=26&lID=1

http://www.cidh.oas.org/Basicos/English/basic5.Prot.Sn%20Salv.htm

http://www.cidh.oas.org/Basicos/English/Basic7.Death%20Penalty.htm

http://www.cidh.oas.org/Basicos/English/basic13.Conv%20of%20Belem%20Do%20Para.htm

Legal framework of the inter-American human rights system: Article 13 of the American Convention

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; orb. the protection of national security, public order, or

public health or morals.

[…]


Legal framework of the inter-American human rights system: Article 13 of the American Convention

[…]

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.


Organs of the Inter-American Human Rights system• Processing of an individual case before the

Inter-American human rights system1. Petition presented to the IACHR2. Admissibility phase before IACHR3. Merits phase before IACHR

• Possibility of friendly settlement • Merits report and period for compliance with recommendations

– Publication– Submission to Inter-American Court

4. Case presented to Inter-American Court5. Public hearing before Inter-American Court6. Judgment of the Inter-American Court (preliminary objections,

merits, reparations and costs)7. Compliance supervision


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


Office of the Special Rapporteur for Freedom of Expression

• Creation– Created by the IACHR in October

1997 – Permanent office with

functional independenceand its own operational structure

• Mandate– Stimulate the hemispheric defense of freedom of thought

and expression, in light of its fundamental role in the consolidation and development of democratic regimes and in the protection of other human rights


Office of the Special Rapporteur for Freedom of Expression

• Functions– Individual case system: strategic

litigation on matters of freedom of expression in the inter-American system

– Precautionary measures– Public hearings– Official visits – Seminars and workshops with strategic actors in the region– Annual report and production of expert knowledge– Statements and special declarations: the bully pulpit


Advances in Jurisprudence in the area of freedom of expression


Advances in Jurisprudence in the area of freedom of expression

1. Prior censorship is prohibited 2. Prohibition of desacato (contempt) laws3. Proportionality of subsequent imposition of liability4. Prohibition on indirect restrictions on freedom of

expression 5. Right of access to information6. Violence against media workers


Advances in jurisprudence in the area of freedom of expression

• Prior censorship is prohibited– Case of the “Last Temptation

of Christ” (Olmedo Bustos and others) vs. Chile (2001)

– Case of Palamara Iribarne vs. Chile (2005)

Palamara Iribarne Case



• Prohibition of desacato (contempt) laws– IACHR, Report on the compatibility of “Desacato”

laws with the American Convention on Human Rights (1994)

• Violate the Convention per se • Unnecessary in a democratic society, disproportionate,

and necessarily discourage speech about matters of public interest

– Case of Palamara Iribarne vs. Chile (2005)



• Proportionality of subsequent impositions of liability – Case of Herrera Ulloa vs. Costa Rica

(2004)– Case of Ricardo Canese vs. Paraguay

(2004)– Case of Kimel vs. Argentina

(2008)– Case of Tristán Donoso vs. Panamá

(2009)– Case of Usón Ramírez vs. Venezuela

(2009)

Herrera Ulloa Case



• Prohibition of indirect restrictions on speech– Advisory Opinion No. 5/85 Compulsory

Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights) (1985)

– Case of Ivcher Bronstein vs. Peru (2001)



• Access to public information – Case of Claude Reyes and others vs. Chile (2006)– Case of Gomes Lund and others (“Guerrilha do

Araguaia”) vs. Brasil (2010)



• Violence against media workers – Violence perpetrated by state agents

• Case of Carpio Nicolle and others vs. Guatemala (2004)• Case of Manuel Cepeda Vargas vs. Colombia (2010)

– State responsibility for the actions of third parties: violation of the duty to ensure by aggravating situations of risk

• Case of Ríos and others vs. Venezuela (2009)• Case of Perozo and others vs. Venezuela (2009)

Manuel Cepeda Vargas Case


http://www.google.com/imgres?imgurl=http://www.radiosantafe.com/wp-content/uploads/2008/12/manuel-cepeda-vargas.jpg&imgrefurl=http://www.radiosantafe.com/2010/01/25/estado-reconoce-su-responsabilidad-ante-el-idh-por-asesinato-de-manuel-cepeda-vargas/&usg=__KCTmnlq_69Mr8fcXgHbBj8ydcZI=&h=284&w=400&sz=12&hl=en&start=3&sig2=LoK52-T31k9hKYK82s20mg&itbs=1&tbnid=2tmXQyPpPOZTlM:&tbnh=88&tbnw=124&prev=/images?q=manuel+cepeda&hl=en&sa=X&rls=com.microsoft:en-us&tbs=isch:1&prmd=ivo&ei=YDk-TLrZHYP88Aarl8GnBg

Challenges: A hemispheric agenda for the defense of freedom of

expression


Continuing challenges to free speech in the Americas

1. Protecting journalists and promoting accountability for crimes committed against media workers in the exercise of their profession



2. From critic to criminal: the need to eliminate laws that criminalize speech and promote proportional impositions of subsequent liability• Desacato and other criminal provisions that protect privacy

and reputation• Defamation of religions, symbols and institutions• Use of criminal provisions on “terrorism” or “treason”• Criminalization of social protest



3. The many faces of censorship – Direct censorship– Indirect censorship

• Arbitrary allocation of frequencies, licenses and government advertising

• Arbitrary use of regulatory and auditing authority• Creation of an environment of hostility• Failure to control abuses by private parties



4. State secrets: the right to access to information and to habeas data



5. Pluralism and diversity in the marketplace of ideas• Antimonopoly laws: to avoid concentration in the

ownership and control of communications media• The allocation of TV and radio licenses and frequencies

should be inclusive and promote diversity and pluralism


Inter-American freedom of expression standards:

Fundamental characteristics


Freedom of expression in the Inter-American system: fundamental characteristics

• Freedom to seek, receive and impart information and ideas of all kinds

– Orally, in writing, in print, in the form of art, or through any other medium of one's choice




• Dual dimensions of the right to freedom of expression

– Individual Dimension– The right of every person to share their thoughts, ideas and

information

– Social/Collective Dimension– The right of society to seek and receive information and ideas

from others and to be well informed



• Functions of Freedom of Expression – Protects the right of every individual to think for

themselves and share information and ideas with others

– Indispensable requirement for the consolidation, functioning and preservation of democratic regimes

– Crucial tool for the exercise of other fundamental rights




• Speech subject to heightened protection under the right to freedom of expression

– Political speech and speech about issues of public interest

– Speech regarding public officials in exercise of their duties and candidates for public office

– Speech that expresses essential elements of personal identity or dignity




• Freedom of expression is not an absolute right• Permissible restrictions:

• Right of reply of persons injured by inaccurate or offensive statements (art. 14)

• Should be regulated by law and meet the requirements of art. 13.2• Subsequent liability (art 13.2), which must:

1. Be established by law • The law must be clear and precise

2. Pursue a legitimate objective• Respect for the rights or reputations of others• Protection of national security, public order, or public health or morals

3. Be necessary to meet the objective pursued • Narrowly tailored to achieve the objective• Proportional to the end pursued• Interfere to the least extent possible with the exercise of freedom of

expression




1) Protecting journalists and combating impunity: prevention, protection and

the pursuit of justice


Protecting journalists and combating impunity: Inter-American legal standards

• Violence against journalists– The murder, kidnapping, intimidation of and/or threats to journalists,

as well as the material destruction of communications media violate the fundamental rights of individuals and strongly restrict freedom of expression.

– These crimes have a chilling effect on other journalists and citizens in general, because they generate fear of denouncing abuses of all kinds, restricting the free flow of information.




• Obligation to protect– Communicators have the right to be protected by the

State in circumstances that may threaten their safety, their physical integrity, or their lives for reasons related to the exercise of their profession

• The State must abstain from favoring or promoting this vulnerability• The State must adopt necessary and reasonable measures to prevent or protect the

rights of the people at riskThese measures should include devoting sufficient resources and attention to preventing attacks on journalists and others exercising their right to freedom of expression

– IACHR, Case of Luiz Gonzalo “Richard” Vélez Restrepo and family vs. Colombia (2010)




• Obligation to Respect• Obligation to respect: violence perpetrated by State

agents– Case of Carpio Nicolle and others vs. Guatemala (2004)– Case of Manuel Cepeda Vargas vs. Colombia (2010)




• Obligation to Ensure– Obligation to ensure: State responsibility for the

actions of third parties• Case of Ríos et al. vs. Venezuela (2009)• Case of Perozo et al. vs. Venezuela (2009)




• Obligation to investigate, prosecute and punish – The lack of investigation and prosecution of those responsible by the State gives

rise to international responsibility- IACHR, Caso Héctor Félix Miranda vs. México (1999)- IACHR, Caso Víctor Manuel Oropeza y otros vs. México (1999)

– The chilling effect of violence can only be avoided through decisive action by the state to punish those responsible

– States must send society a clear message that grave violations against freedom of expression will not be tolerated. The state must:

• Condemn these attacks• Investigate them promptly and effectively in order to duly sanction those responsible• Provide compensation to the victims • Inform the public on a regular basis about the proceedings




• Journalists who cover armed conflict, emergencies or politically polarized situations– It is part of the field of journalistic activity covered by the right to

freedom of expression to visit and document communities affected by armed conflict They are protected by freedom of expression

– Members of the press operating in conflict conditions are entitled to special protections from the State, even if the conflict involves unlawful armed group It is not enough to order measures of protection; an effective, coherent and consistent implementation of the order is also required

• IACHR, Case of Luiz Gonzalo “Richard” Vélez Restrepo and family vs. Colombia (2010)• IACHR, Case of Narciso González Medina vs. Dominican Republic (2010)




• Responsibility of media outlets– Media owners should be encouraged to provide

appropriate support to journalists engaged in investigative journalism (2003 Joint Declaration of the Special Rapporteurs for Freedom of Expression)




2) Subsequent imposition of liability


Subsequent imposition of liability: Inter-American legal standards

• Criminal sanctions– Herrera Ulloa v. Costa Rica (2004)– Ricardo Canese v. Paraguay (2004)– Palamara v. Chile (2005)– Kimel v. Argentina (2008)– Tristán Donoso v. Panama (2009)– Case of Usón Ramírez v. Venezuela (2009)

• Civil sanctions – Tristán Donoso v. Panama




• Permissible limitations on freedom of expression under the American Convention• Subsequent liability permitted in order to protect rights

and reputation of others (art. 13.2), but:• Sanctions should be civil in nature when matters of public interest

are involved• “Actual malice” standard should apply• Party alleging harm bears the burden of proof• Exceptio veritatis absolute defense• Opinions cannot be subject to liabilty




• 3-part test for assessing the permissibility of sanctions under Art 13.2:• Established by law

• The law must be clear and precise

• Pursue a legitimate objective• Legitimate objectives: respect for the rights or reputations of others,

the protection of national security, public order, or public health or morals

• Necessary to meet the objective pursued • Proportional to the end pursued, interfering to the least extent

possible with the exercise of freedom of expression




• Criminal sanctions– Struck down in all cases in which criminal sanctions

subjected to examination of Inter-American Court

– Criminal sanctions can only be employed in exceptional cases due to chilling effect on free speech




• Criminal sanctions found to violate freedom of expression by Inter-American Court:– Herrera Ulloa v. Costa Rica (2004)– Ricardo Canese v. Paraguay (2004)– Kimel v. Argentina (2008)– Tristán Donoso v. Panama (2009)– Usón Ramírez v. Venezuela (2009)




• Considerations on civil sanctions– Proportionality of civil sanctions

• Should not be so large as to exert a chilling effect on freedom of expression

• Should be designed to restore the reputation harmed, not to punish the defendant

• Pecuniary awards should be strictly proportionate to the actual harm caused and the law should prioritize the use of a range of non-pecuniary remedies




• Considerations on civil sanctions– Tristan Donoso v. Panama

– “Fear of a civil penalty can be equally or more intimidating and inhibiting for the exercise of freedom of expression than a criminal punishment, given its potential to compromise one’s personal and family life and induce self-censorship”




For more information:

IACHR Special Rapporteurship for Freedom of Expression:The Inter-American Legal Framework regarding the Right to

Freedom of Expression



3) Pluralism and diversity in the democratic debate


Pluralism and diversity: Inter-American legal standards

• Anti-monopoly laws– Monopolies or oligopolies in the ownership and control of

the communication media must be subject to anti-trust laws, as they conspire against democracy by limiting the plurality and diversity which ensure the full exercise of people’s right to information.

– States have the obligation to prevent public and private monopolies in the ownership and control of media outlets




•Broadcasting regulations •Should be foreseeable and provide legal certainty to those who hold or acquire a license

•Allocation of licenses and frequencies:•Open, public and transparent processes •Processes governed by clear and pre-established rules•Requirements should be strictly necessary, fair and equitable •Technical organ independent from the government, subject to due process guarantees and judicial control



•Broadcasting regulations •Should ensure equal access to frequencies and greater media diversity

•Anti-monopoly laws are not sufficient•Should be part of an active policy of inclusion that tends to reduce existing inequality•Special rules to permit access for groups traditionally marginalized from the media marketplace



•Community broadcasting •Community radio and television stations serve a fundamental role in democracies in the Americas •Normative framework around community broadcasting should:

•Recognize the particular characteristics of these media outlets•Provide for simply procedures for obtaining licenses•Not include overly demanding technical requirements that have the affect of impeding access as a practical matter•Allow for the use of advertising as a means of financing




IACHR Special Rapporteurship on Freedom of Expression:Freedom of Expression Standards for

Free and Inclusive Broadcasting



4) The right to access to information


Access to Information: Inter-American legal standards

What is it?• The obligation of the State to allow citizens access to

information in its power; or, the right of citizens to obtain information in the State’s possession

Where is it established?• Article 13 of the American Convention• Declaration of Principles on Freedom of Expression• Jurisprudence of the Inter-American Court



• Functions of access to information • A crucial tool for controlling State affairs and public

administration, as well as monitoring corruption• A tool for citizen participation in politics through the

informed exercise of political rights• A tool for learning the scope of our rights and exercising

them• A tool for the fulfillment of the social rights of excluded or

marginalized sectors of society



• What information is covered? • Information under the custody, administration or control

of the State• Information that the State produces or is obligated to

produce• Information under the control of those who administer

public funds and services, exclusively with regard to such funds and services

• Information that the State captures or is obligated to capture in carrying out its functions



• Who can exercise the right? • All persons have the right to request access to

information. It is not necessary to demonstrate a direct interest in order to obtain information under State control, unless a legitimate restriction applies.



• Who must ensure the right? • Public authorities in all branches of government and

autonomous government agencies• Those who carry out public functions, provide public

services or execute public funds in the name of the State



• Underlying principles• Principle of maximum disclosure

• The right of access to information is the rule and secrecy the exception

• Burden of proof on the State when limits on this right are established

• Preeminence of this right in case of doubt

• Principle of Good Faith• Those who interpret the law should ensure the strict

application of this right



• State obligations:1. Obligation to offer a legal recourse that satisfies this right to all persons

without the necessity of manifesting a direct interest2. Obligation to respond in a timely, complete, and accessible manner to

requests3. Obligation to provide an adequate and effective legal remedy for

reviewing denials of requests for information 4. Obligation of active transparency5. Obligation to produce or gather information6. Obligation to create a culture of transparency7. Obligation of adequate implementation 8. Obligation to adjust domestic legislation



• Permissible Restrictions• Exceptional nature: principle of maximum disclosure • Art. 13.2 of the American Convention

• Established by law • The law must be clear and precise

• Pursue a legitimate objective• Legitimate objectives: respect for the rights or reputations of

others, the protection of national security, public order, or public health or morals

• Necessary to meet the objective pursued • Proportional to the end pursued, interfering to the least extent

possible with the exercise of freedom of expression


Access to Information: an emblematic case

• Case of Claude Reyes vs. Chile (2006): Facts– Environmental activists asked the State

for information about a contract to carry out a deforestation project

– Without providing a reasoned response, the State agency did not release a large portion of the information requested

– The citizens filed an application for protection before national courts alleging the violation of their constitutional right to access to information

– The application was dismissed by the Chilean courts, which considered it “clearly groundless”


Condor River, Chile

Access to Information: an emblematic case

• Case of Claude Reyes vs. Chile: Conclusions of the Court– Art. 13 of the Convention protects the right to access to

information – Chile violated article 13 of the American Convention for failing to

guarantee the right to access to information• The refusal to provide the information was not based on a law, and

the State did not prove that the refusal responded to a purpose allowed by the American Convention

– Chile has the obligation to provide the requested information and adopt the necessary measures to guarantee the protection of the right to access to information

Text of the judgment


Access to Information Inter-American legal standards: human rights violations

• Access to information on human rights violations• IACHR, Jose Miguel Gudiel Alvarez et al. (“Diario Militar”)

vs. Guatemala (2010)• Gomes Lund et al. (“Guerrilha do Araguaia”) vs. Brazil

(2010)



• Access to information on human rights violations • Should be gathered, preserved and systematized• Can never be denied to a judicial authority• Cannot remain privileged for reasons of “national

security”• The concept of “national security” should be interpreted through

a democratic perspective



• Access to information on human rights violations • When it comes to a punishable act, the decision to

qualify the information as secret cannot depend exclusively on the state organ to which the commission of the illegal act is attributed.

• The State cannot allege a lack of proof of the existence of the documents It must justify the failure to provide them, demonstrating that it has adopted all measures at its disposal to establish that the requested information does not in fact exist


Access to information: Inter-American legal standards


IACHR Special Rapporteurship on Freedom of Expression:The Inter-American Legal Framework regarding the

Right to Access to Information


Thank YouPlease complete the evaluation

Office of the Special Rapporteur for Freedom of Expressionhttp://www.cidh.oas.org/Relatoria/


http://www.cidh.oas.org/Relatoria/



program the inter-american human rights system

Documents

american convention

human rightsorgans

human rights admissibility

freedom of expression

defense of freedom

information office

child office

oas member states office