Special Rapporteur highlights best practices for jurisprudence on issues of freedom of expression in Latin America

The Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR) documented the progress of jurisprudence on freedom of expression in the Americas in its recent report, “National Case Law on Freedom of Expression.” The report analyzes the time period from 2013 to 2016 in ten countries in the region.

The countries studied in the report are Costa Rica, Panama, the Dominican Republic, Argentina, Colombia, Mexico, Uruguay, Brazil, Canada and the United States.

Of the ten, Argentina, Colombia, Mexico, Uruguay and Brazil are the most advanced in terms of incorporating legislation that respects the standards of inter-American jurisprudence regarding the right to freedom of expression. These countries have promoted the exercise of this right in the last three years, the report noted.

"The idea of the report is to establish and update a dialogue between inter-American jurisprudence and the level of the high courts at the national level. This is the second report we have produced, the first was in 2012. We try every three or four years to have an updated report on jurisprudence (of countries in the region) because it seems fundamental to us,” Edison Lanza, Special Rapporteur for Freedom Expression of the IACHR, told the Knight Center.

What they want to see is how an inter-American legal framework is being established or developed in the area of freedom of expression, whether there is a very important series of court rulings and whether the states have, in any way, ratified the American Convention On Human Rights, and recognized the competence of the Inter-American court, Lanza explained.

"It is a way of seeing how these standards are being incorporated at the national level, and on the other hand, for the Rapporteurship and the Court of the inter-American system to somehow gather the innovations, the decisions in which the national courts are increasingly applying these high standards to particular cases in their countries. This material will provide access to regional comparative jurisprudence with a specific, concrete, easily accessible and orderly work," the Rapporteur said.

According to the study, its results also reflect judicial advances in political discourse and in discourse of public officials. It also notes the increase in the judicialization of issues related to freedom of expression on the internet, about which there is still not much development in the region.

This report does not contain all the jurisprudence on freedom of expression that exists in the region, but is a selection of those decisions that stand out for their quality and for their dialogue with the standards of the inter-American system, and which offer protection in the legal framework of the right to freedom of expression, Lanza said.

For the Rapporteurship, courts and the legal entities are relevant actors in protecting the rights to freedom of expression and access to public information on the continent.

Additionally, States have the obligation to allow the media to keep society informed, especially in periods of acute social and political crisis. The media must be able to develop freely and independently, the report said.

The document is structured in 15 chapters that deal with the exercise of freedom of expression, as well as regulations, self-censorship and limitations on the right, in the democratic countries of the Americas. It also looks at the gaps that still exist, and the recommendations it suggests regarding the definition of the right to freedom of expression on the Internet.

For example, the first chapter of the report, "Case law on the importance, function, and scope of freedom of expression in democratic systems,” speaks of the normative advances of American countries in recent decades based on the fundamental principles of the IACHR and the Inter-American Court on the basis of the American Convention, the American Declaration and the Inter-American Democratic Charter.

An example from this chapter took place in Mexico. On June 20, 2013, the Supreme Court of that country ruled in favor of the action of unconstitutionality brought by the National Commission of Human Rights (CNDH for its acronym in Spanish) against an article in the penal code in the state of Veracruz. In the court’s opinion, it said that freedom of expression and the right to information are "central to the constitutional and democratic rule of law” and are “fundamental pillars,” the report said.

"This report shows very good practices in almost all dimensions of the protection of freedom of expression," the Rapporteur said. "We found very good practices in cases of censorship, further liability, diversity and pluralism. For example, regarding the approval of a law on the regulation of radioelectric spectrum and audiovisual media, the Uruguayan Supreme Court, for a circumstantial reason, had to approve about 40 constitutional challenges," he said.

Regarding the current situation in Mexico, where impunity is the central concern of many of the cases of violence against journalists, Lanza said: "Many cases of violations of freedom of expression (in Mexico) are slow to reach the decision stage of the judicary. That is basically a failure of the pursuit of justice, both state and federal, in many of these cases. The deficit is found in those who have the obligation to investigate, which by the new accusatory system is basically in the hands of prosecutors today. We would see the application of legal standards on issues of freedom of expression once they come to the courts."

Regarding the press’ coverage of the management and performance of public officials, the eighth chapter of the report explains the incompatibility of desacato laws, those dealing with offenses against officials, and the American Convention. The desacato laws, which still persist in some countries of the region, are not necessary in a democratic country, the document said.

According to principle 11 of the Declaration of Principles on Freedom of Expression, "public officials are subject to greater scrutiny by society,” and therefore, “Laws that penalize offensive expressions directed at public officials, generally known as ‘desacato laws,’ restrict freedom of expression and the right to information.”

Regarding the lack of specific jurisprudence on freedom of expression on the internet, chapter 15 of the report points out that it is necessary “to adopt a systemic perspective on the digital environment for determining the limits to freedom of expression on the internet.” That is, the particularity of each case should be evaluated, the Rapporteurship said in its report.

"For the first time, the analysis of jurisprudence on freedom of expression on the Internet is included in this report. That is a chapter we did not have, obviously because there had not been enough cases in the courts during the first decade of the century," Lanza said. Brazil, Mexico and Colombia have shown considerable care in dealing with these cases, according to the Rapporteur.

A representative example highlighted in the last chapter of the report is a ruling by the Superior Court of Justice of Brazil in June 2014. In this case, Judge Nancy Andrighi dismissed the injunction against an internet search service provider.

In her decision, the judge stressed the importance of search services in a world in which the daily lives of millions of people depend on information that is on the internet, and that is found thanks to the search tools offered by these sites.

In the context of the Special Rapporteur’s annual report, among the recommendations regarding the internet is the design of an alternative and specific normative framework for this medium. This way, its particularities will be taken care of based on the current international standards related to freedom of expression, it said.

The promotion of universal access to the internet should be carried out in order to ensure the effective enjoyment of the right to freedom of expression by this media, the report said.

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.