E.         Right to Freedom of Expression

1.         International Human Rights Law

           264.      The right to freedom of expression is stated in broad terms in Article IV of the American Declaration of the Rights and Duties of Man[639] and Article 13 of the American Convention on Human Rights.[640]  These instruments provide the following with respect to freedom of expression: 

American Declaration

Article IV. Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever.

American Convention

Article 13.1. 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.

            265.      In order to aid the Commission in the interpretation of these two articles, the Office of the Special Rapporteur for Freedom of Expression of the IACHR developed the Declaration of Principles on Freedom of Expression.[641]  The Declaration, approved by the Commission during its 108^th period of sessions in October 2000, is a set of 13 principles detailing the requirements of freedom of expression according to international law and jurisprudence.  Key provisions of the Declaration of Principles include:

2.             Every person has the right to seek, receive and impart information and opinions freely under terms set forth in Article 13 of the American Convention on Human Rights.  All people should be afforded equal opportunities to receive, seek and impart information by any means of communication without any discrimination for reasons of race, color, sex, language, religion, political or other opinions, national or social origin, economic status, birth or any other social condition.

3.             Every person has the right to access to information about himself or herself or his/her assets expeditiously and not onerously, whether it be contained in databases or public or private registries, and if necessary to update it, correct it and/or amend it.

4.             Access to information held by the state is a fundamental right of every individual. States have the obligation to guarantee the full exercise of this right. This principle allows only exceptional limitations that must be previously established by law in case of a real and imminent danger that threatens national security in democratic societies.

5.             Prior censorship, direct or indirect interference in or pressure exerted upon any expression, opinion or information transmitted through any means of oral, written, artistic, visual or electronic communication must be prohibited by law.  Restrictions to the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the imposition of obstacles to the free flow of information violate the right to freedom of expression.  

[. . . ]

8.             Every social communicator has the right to keep his/her source of information, notes, personal and professional archives confidential.

9.             The murder, kidnapping, intimidation of and/or threats to social communicators, as well as the material destruction of communications media violate the fundamental rights of individuals and strongly restrict freedom of expression.  It is the duty of the state to prevent and investigate such occurrences, to punish their perpetrators and to ensure that victims receive due compensation.

266.      The right to freedom of expression is also protected in various other international human rights instruments, including Article 19 of the Universal Declaration of Human Rights,[642] Article 19 of the International Covenant on Civil and Political Rights,[643] and Article 10 of the European Convention on Human Rights.[644]  A comparison of Article 13 of the American Convention with each of the foregoing provisions shows “the extremely high value that the Convention places on freedom of expression”[645] and that “the guarantees contained in the American Convention regarding freedom of expression were designed to be more generous and to reduce to a bare minimum restrictions impeding the free circulation of ideas.”[646]  

            267.      Respect for and protection of freedom of expression plays a fundamental role in strengthening democracy and guaranteeing human rights by offering citizens an indispensable tool for informed participation.  Weak public institutions, official corruption and other problems often prevent human rights violations from being brought to light and punished.  In countries affected by such problems, the exercise of freedom of expression has become the main means by which illegal or abusive acts previously unnoticed, ignored or perpetrated by authorities are exposed.  As the Inter-American Court of Human Rights stated:

[F]reedom of expression is a cornerstone upon which the very existence of a democratic society rests. . . . 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.[647]

           268.      The Inter-American Court has emphasized that there are two aspects to the right to freedom of expression: the right to express thoughts and ideas, and the right to receive them.  Therefore, limitation of this right through arbitrary interference affects not only the individual right to express information and ideas, but also the right of the community as a whole to receive all types of information and opinions.[648]

269.      The European Court of Human Rights, in a decision cited by the Inter-American Court and the Inter-American Commission, has declared that protection of freedom of expression must encompass not only favorable information or ideas, but also those that “offend, shock or disturb” because “[s]uch are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society.’”[649]  Stifling unpopular or critical ideas and opinions restricts the debate that is essential to the effective functioning of democratic institutions.

270.      The exercise of freedom of expression and information without discrimination by all sectors of society enables historically marginalized sectors to improve their conditions.  The right to freedom of expression is also “essential for the development of knowledge and understanding among peoples, that will lead to a true tolerance and cooperation among the nations of the hemisphere[.]”[650]

271.      As indicated in the introductory chapter on human rights of this report, freedom of expression is not included in the list of rights that are non-derogable in states of emergency in Article 27 of the American Convention.  However, any restrictions on freedom of expression in the context of an emergency situation must conform to the requirements of proportionality, scope, and non-discrimination set forth in Article 27.[651]  In imposing such restrictions on the right to freedom of expression, States should also bear in mind the importance of freedom of expression in guaranteeing other fundamental human rights. 

a.         Prior Censorship

272.      Article 13 of the American Convention expressly prohibits prior censorship except for the regulation of access to public entertainments for the moral protection of childhood and adolescence.[652]  The Inter-American Court has indicated that prior censorship constitutes an extreme violation of the right to freedom of expression because "governmental power is used for the express purpose of impeding the free circulation of information, ideas, opinions or news [. . . ]  Here the violation is extreme not only in that it violates the right of each individual to express himself, but also because it impairs the right of each person to be well informed, and thus affects one of the fundamental prerequisites of a democratic society.”[653]  As discussed in the section on freedom of expression and terrorism below, however, there could arise in an validly-declared state of emergency some situations in which national security or public order would permit limited censorship.

273.      Notwithstanding the explicit exception regarding the protection of minors, measures designed to prevent the dissemination of expressions violate the American Convention.[654]  As the Commission has stated:

The prohibition of prior censorship, with the exception present in paragraph 4 of Article 13, is absolute and is unique to the American Convention, as neither the European Convention nor the Covenant on Civil and Political Rights contains similar provisions.  The fact that no other exception to this provision is provided is indicative of the importance that the authors of the Convention attached to the need to express and receive any kind of information, thoughts, opinions and ideas.[655]

b.         Subsequent Liability

274.      Article 13(2) of the American Convention, while explicitly prohibiting prior censorship,[656] allows for subsequent penalties to be applied under limited circumstances. Such penalties must 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."[657]

275.      The requirement that a subsequent penalty be “expressly established by law", also included in Article 10 of the European Convention on Human Rights, has been interpreted by the European Court of Human Rights to mean that the basis for subsequent liability must be “formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able—if need be with appropriate advice—to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.”[658]  This does not mean that the subsequent penalty must specifically be provided for in legislation passed by the legislature; it may be contained in common law, administrative regulations or similar sources.  It must, however, be reasonably precise and accessible to the public.[659]

276.      Two of the possible justifications for subsequent liability for expressions are relevant to the context of fighting terrorism: public order and national security.  “Public order" has been defined by the Inter-American Court of Human Rights “as a reference to the conditions that assure the normal and harmonious functioning of institutions based on a coherent system of values and principles.”[660]  The Court has also stated that:

[T]hat same concept of public order in a democratic society requires the guarantee of the widest possible circulation of news, ideas and opinions as well as the widest access to information by society as a whole.  Freedom of expression constitutes the primary and basic element of the public order of a democratic society, which is not conceivable without free debate and the possibility that dissenting voices be fully heard.[661]

277.      Subsequent liability can be based on “national security” if "its genuine purpose or demonstrable effect is to protect a country's existence or its territorial integrity against the use or threat of force or its capacity to respond to the use or threat of force, whether from an external source, such as a military threat, or an internal source, such as incitement to violent overthrow of the government."[662]  The application of the concepts of public order and national security in practice will be discussed further in the section on the right to freedom of expression and terrorism.

278.      With respect to the requirement of "necessity," the Inter-American Court of Human Rights has interpreted this to mean that a subsequent penalty is more than just "useful," "reasonable" or "desirable."[663]  Rather, the government must show that such a penalty is the least restrictive of possible means to achieve the government's compelling interest.[664]  The penalty "must be justified by reference to governmental objectives which, because of their importance, clearly outweigh the social need for the full enjoyment of the right Article 13 guarantees."[665]  Moreover, the  provision "must be so framed so as not to limit the right protected by Article 13 more than is necessary.  . . . [T]he restriction must be proportionate and closely tailored to the accomplishment of the legitimate governmental objective necessitating it."[666]  This is an extremely high standard and any provisions imposing subsequent liability for the exercise of freedom of expression must be carefully examined using this proportionality test in order to prevent undue limitations of this fundamental right.

c.         Confidentiality of Sources

279.      Freedom of expression is understood as encompassing the right of journalists to maintain the confidentiality of their sources.  It is the social communicator’s right not to reveal information or documentation that has been received in confidence or in the course of research.  Professional confidentiality allows journalists to assure sources that they will remain anonymous, reducing fears they may have of reprisals for disclosing information.  As a result, journalists are able to provide the important public service of collecting and disseminating information that would not be made known without protecting the confidentiality of the sources.  Confidentiality, therefore, is an essential element of the work of the journalist and of the role society has conferred upon journalists to report on matters of public interest.[667]  The European Court of Human Rights has recognized the importance of the protection of journalistic sources as "one of the basic conditions for press freedom [.]"[668]  The European Court stated:

Without such protection, sources may be deterred from assisting the press in informing the public in matters of public interest.  As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected.  Having regard to the importance of the protection of sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 (Article 10) of the Convention unless it is justified by an overriding requirement in the public interest.[669]

280.      The Inter-American Commission on Human Rights has also indicated that the protection of sources is a part of the general guarantee of press freedom when it approved the Declaration of Principles on Freedom of Expression.[670]  It should be emphasized that this right does not constitute a duty, as the social communicator does not have the obligation to protect the confidentiality of information sources, except for reasons of professional conduct and ethics.[671]

d.         Access to Information

281.      As stated earlier, the right to freedom of expression includes both the right to disseminate and the right to seek and receive ideas and information.  Based on this principle, access to information held by the State is a fundamental right of individuals and States have the obligation to guarantee it.[672]  In terms of the specific objective of this right, it is understood that individuals have a right to request documentation and information held in public archives or processed by the State, in other words, information considered to be from a public source or official government documentation.

282. "To guarantee freedom of expression without including freedom of information would be a formal exercise, denying both effective expression in practice and a key goal which free expression seeks to serve."[673]  The right to freedom of information is closely related to the principle of transparency in the administration of government activities.  In a democracy, the State is a vehicle for ensuring the common good, deriving its powers from the consent of the governed.  In this context, the owner of the information about public administration is the individual who has delegated the management of public affairs to his or her representatives.  The principle of transparency requires governments to play the role of service-provider, furnishing all duly requested information that has not been temporarily classified as exempt from the exercise of this right.[674]

283.      Without the information that every person is entitled to, it is clearly impossible to exercise freedom of expression as an effective vehicle for civic participation or democratic oversight of government management.  Lack of effective oversight “gives rise to conduct that runs counter to the essence of a democratic State and opens a door to wrongdoing and unacceptable abuses.”[675]

284.      As a fundamental component of the right to freedom of expression, access to information must be governed by the "principle of maximum disclosure."[676]  In other words, the presumption should be that information will be disclosed by the government.  Specifically, as noted in the chapter on the right to personal liberty and security, information regarding individuals arrested or detained should be available to family members, counsel and other persons with a legitimate interest in such information.[677]

285.      Limited restrictions on disclosure, based on the same criteria that allow sanctions to be applied under Article 13, may be included in the law.  The burden of proof is on the State to show that limitations on access to information are compatible with the inter-American standards on freedom of expression.[678]  As in the case of subsequent restrictions on expressions, the most often-invoked rationales for limiting access to information in the context of fighting terrorism will be public order and national security.  The specific content of such restrictions will be discussed in the section of this chapter on freedom of expression and terrorism.

286.      The restrictions must be expressly defined in the law and "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."[679]  This means that not only must the restriction relate to one of these aims, it must also be shown that the disclosure threatens "to cause substantial harm to that aim"[680] and that "the harm to the aim must be greater than the public interest in having the information."[681]  This is essentially the proportionality test enunciated above in the section on subsequent liability for expressions.  Whenever information is denied based on the foregoing analysis, an opportunity for independent review of the decision should be provided.[682]

287.      An additional aspect of the right to access to information is "a presumption that all meetings of governing bodies are open to the public."[683]  This presumption is applicable to any meeting in which decision-making powers are exercised, including administrative proceedings, court hearings, and legislative proceedings.[684]  Any limitations on openness of meetings should be subject to the same requirements as the withholding of information.[685]

288.      Finally, the Johannesburg Principles on National Security, Freedom of Expression and Access to Information,[686] which the Commission, like other international authorities, considers to provide authoritative guidance for interpreting and applying the right to freedom of expression in light of considerations of national security,[687] confirm that access to information dictates that "[a]ny restriction on the free flow of information may not be of such a nature as to thwart the purposes of human rights and humanitarian law.  In particular, governments may not prevent journalists or representatives of intergovernmental or non-governmental organizations with a mandate to monitor adherence to human rights or humanitarian standards from entering areas where there are reasonable grounds to believe that violations of human rights or humanitarian law are being, or have been, committed."[688]  Access to information also dictates that journalists have access to conflict areas, disaster sites and other such locations unless to give them such access would pose a "clear risk to the safety of others."[689]

e.         Habeas Data  

289.      In addition to the general right to access to information in the hands of the government, every person has the right to access to information about himself or herself, whether this is in the possession of a government or private entity.[690]  Often called the right to habeas data, this right includes the right to modify, remove, or correct such information due to its sensitive,[691] erroneous, biased, or discriminatory nature.[692]  The right to access to and control over personal information is essential in many areas of life, since the lack of legal mechanisms for the correction, updating or removal of information can have a direct impact on the right to privacy, honor, personal identity, property, and accountability in information gathering.[693] 

290.      In recent years, recourse to the action of habeas data has become a fundamental instrument for investigation into human rights violations committed during past military dictatorships in the Hemisphere.  Family members of disappeared persons have used habeas data actions to obtain information concerning government conduct, to learn the fate of disappeared persons, and to exact accountability. Thus, these actions constitute an important means to guarantee the "right to truth."[694]

291.      With respect to the relationship between the right to the truth and Article 13(1) of the American Convention, the Inter-American Commission on Human Rights argued before the Inter-American Court in the Barrios Altos case that:

[T]he right to truth is founded in Articles 8 and 25 of the Convention, insofar as they are both “instrumental” in the judicial establishment of the facts and circumstances that surrounded the violation of a fundamental right.  It also indicated that this right has its roots in Article 13(1) of the Convention, because that article recognizes the right to seek and receive information.  With regard to that article, the Commission added that the State has the positive obligation to guarantee essential information to preserve the rights of the victims, to ensure transparency in public administration and the protection of human rights..[695]

292.      In addition, the action of habeas data imposes certain obligations for entities that process information: the obligation to use the data for specific, explicitly stated objectives, and the obligation to guarantee the security of the data against accidental, unauthorized access or manipulation.  In cases where entities of the state or the private sector obtain data improperly and/or illegally, the petitioner must have access to that information, even when classified, so that individuals have control over data that affects them.  The action of habeas data as a mechanism for ensuring the accountability of security and intelligence agencies within this context provides a means to verify that personal data has been gathered legally.  The action of habeas data entitles the injured party, or his family members, to ascertain the purpose for which the data was collected and, if collected illegally, to determine whether the responsible parties are punishable.  Public disclosure of illegal practices in the collection of personal data can have the effect of preventing such practices by these agencies in the future.[696]  

293.      In order for the action of habeas data to be effective, the administrative hurdles that complicate or frustrate the obtention of information must be eliminated, and simple, easily accessible systems enabling individuals to request information inexpensively must be put in place.  The result, otherwise, would be to establish a formal mechanism that, in practice, would not facilitate access to information.

294.      As in the case of access to information generally, any restrictions preventing the exercise of the right to habeas data must meet the standards of necessity and proportionality.[697]  Under most circumstances, individuals exercising the action of habeas data should not be required to indicate why the information is being requested.  The mere existence of personal data in public or private records is ordinarily a sufficient reason in itself for the exercise of this right.[698]

295.      The habeas data writ has acquired even greater significance with the emergence of new technologies.  Widespread use of computers and the Internet has meant that the State and private sector can gain rapid access to a considerable amount of information about people.  It is therefore necessary to ensure that there are specific channels for rapid access to information that can be used to correct or modify any incorrect or outdated information contained in electronic databases. 

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