Office of the Special Rapporteur of IACHR suggests adapting existing jurisprudence on freedom of expression to the digital age

Given that new forms of communication –such as social networks, platforms and digital news sites, among others– pose new challenges to the exercise and defense of the right to freedom of expression, a recent study by the Inter-American Commission on Human Rights (IACHR) ) suggests reviewing the jurisprudence of the Inter-American Human Rights System in that regard.

The report "Freedom of Expression: 30 years of the Advisory Opinion on the compulsory licensing of journalists," which is composed of eight articles or chapters, counts among its authors prominent experts in international law on freedom of expression. Four of them are lawyers from Latin American countries that once occupied the position of Special Rapporteur for Freedom of Expression of the IACHR.

They are lawyers Santiago A. Cantón of Argentina, first Special Rapporteur to occupy the office in 1998; Eduardo A. Bertoni, an Argentine who took the post in 2002; Colombian Catalina Botero, rapporteur for two sessions (2008, 2011) and current rapporteur, Uruguayan lawyer Edison Lanza (2014-current).

For Bertoni, the theme of freedom of expression in the digital era has not been widely studied thus far, despite the impact of freedom of expression in the world.

The second rapporteur states that although agreements on protection of freedom of expression reached in Advisory Opinion 5 of the Inter-American Court –which was held in 1985 in Costa Rica and interprets Article 13 of the American Convention on Human Rights– can be applied at present to current forms of communication in the digital age, they are not sufficient to cover its great dimensions. Bertoni suggests that a new debate be opened on the subject.

For example, in terms of social networks and prior censorship –a measure that according to the report is almost completely forbidden by the Inter-American Court– Bertoni proposes that States request a new Advisory Opinion from the Inter-American Court of Human Rights, so that media have legal norms to regulate their use.

Regarding prior censorship in digital media and sites, Lanza told the Knight Center that the prohibition of prior censorship remains practically absolute for the Inter-American System of Human Rights.

"I do not think we should expand or establish a hypothesis of prior censorship that States can exercise. (For example), what my article raises is definitively that 13.3 (article and paragraph of the American Convention) estalishes that indirect censorship imposed on media by governments or individuals is prohibited and disrespects freedom of expression. So, the question posed by (my) article is whether private actors who are intermediaries of the circulation of information on the internet, platforms, etc., when they remove content (from the internet) without a court order, by virtue of its terms and political conditions, whether in that sense they are exercising some kind of censorship or not," Lanza stressed.

Moving from the time of traditional media to the current digital environment, Lanza reviews the principles and advances of freedom of expression established in the last advisory opinion (1985) from the Inter-American Court. He wrote that more than 30 years after these conclusions, the impact of the internet has substantially changed the media environment.

It is necessary, Lanza said in his writing, that there be new readings of these principles. "Although the mass audiovisual media and even the written press still play a relevant role in seeking, receiving and disseminating information and news of public interest, the scope of freedom of expression can no longer be understood without taking into account the impact of phenomena including the Internet, social networks and new forums or digital platforms to express opinions, share ideas and information," he said.

Botero, in addition to explaining the right to freedom of expression in the digital era, explores the problem of misinformation and “false news.”

Botero considers the theme of false news to be the “mass disclosure of false information, knowing its falsity and with the intention of manipulating the public.” For the former rapporteur, false news affect and directly damage the democratic deliberative process and decision making in a democracy. In this sense, Boter wonders if it is the role of the State to prohibit these news or at least regulate them.

However, Botero also believes that it would be more damaging if it was the State’s responsibility to censor digital media and platforms that generate or disseminate false information. "In a true democracy, it was said, the best remedy for lies is free democratic debate," she wrote.

Other major issues covered by the report are freedom of expression and audiovisual media in the Inter-American System of human rights, with a new look at the right to receive and disseminate information, written by Eduardo Ferrer Mac-Gregor; freedom of expression, sanctions and the Inter-American System, by Ignacio J. Álvarez M; and freedom of expression in the jurisprudence of the Inter-American Court (2015), written by the former president of the Inter-American Court, Sergio García Ramírez and Alejandra Gonza.

Note from the editor: This story was originally published by the Knight Center’s blog Journalism in the Americas, the predecessor of LatAm Journalism Review.