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 108th 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.
f. Protection of Journalists and Communications Media
296. The Inter-American Court has noted that it is primarily through the communications media that a society exercises its right to freedom of expression.[699] Therefore, “the conditions of its use must conform to the requirements of this freedom,�?[700] meaning that the freedom and independence of journalists and media must be guaranteed.[701] According to the Inter-American Court:
[F]reedom of expression is not exhausted in the theoretical recognition of the right to speak or write, but also includes, inseparably, the right to use any appropriate method to disseminate thought and allow it to reach the greatest number of persons. . . . Furthermore, it is essential that the journalists who work in the media should enjoy the necessary protection and independence to exercise their functions comprehensively, because it is they who keep society informed, and this is an indispensable requirement to enable society to enjoy full freedom.[702]
297. As such, States have a special responsibility to protect journalists and communications media from attacks, intimidation and threats.[703] The murder, abduction, intimidation and threatening of journalists, as well as the destruction of press materials, are most often carried out with two concrete aims. The first is to eliminate journalists who are investigating attacks, abuses, irregularities, or illegal acts of any kind committed by public officials, organizations, or non-state actors. This is done to ensure that the investigations are not completed or never receive the public debate they deserve, or simply as a form of reprisal for the investigation itself. Secondly, such acts are used as an instrument of intimidation to send an unmistakable message to all members of civil society engaged in investigating attacks, abuses, irregularities, or illicit acts of any kind. These practices seek to silence the press in its watchdog role, or render it an accomplice to individuals or institutions engaged in abusive or illegal actions. Ultimately, the goal of those who engage in these practices is to keep society from being informed about such occurrences, at any cost.[704]
298. Under the American Convention on Human Rights and other international law instruments, States have the obligation to effectively investigate the events surrounding the murder of and other violent acts against journalists and to punish the perpetrators. The Inter-American Court has maintained that the investigation:
. . . must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government.[705]
299. The Inter-American Commission on Human Rights has asserted that a State’s failure to carry out an effective and thorough investigation of the murder of a journalist and to apply criminal sanctions against the material and intellectual authors is particularly serious in terms of the impact this has on society. This type of crime has an intimidating effect not just on journalists, but on all citizens, because it inspires fear of reporting attacks, abuses, and illegal activities of any kind. This effect can only be avoided by concerted government action to punish those responsible for murdering journalists. In this way, States can send a strong, direct message to society that there will be no tolerance for those who engage in such a grave violation of the right to freedom of expression.[706]
2. International Humanitarian Law
a. Protection of Journalists and Media Installations During Armed Conflict
300. The following section will discuss the rules applicable under international humanitarian law that pertain to journalists and media installations, principally in connection with the protections applicable to civilians and civilian objects. Most of these protections, in particular those dealing with the principle of distinction, are applicable to situations of both international and non-international armed conflicts.[707]
301. Under the rules and principles of international humanitarian law, applicable in both international and non-international armed conflicts, journalists are considered to be civilians and are entitled to the rights that this status implies, including those analyzed in other sections of this report.[708] Journalists retain this civilian status so long as they “take no action adversely affecting their status as civilians.�?[709] Those journalists who serve as war correspondents accredited to a particular armed force in an international armed conflict are entitled to prisoner of war status if they fall under the power of the enemy.[710] Any other journalist who is captured by an enemy power may only be detained if criminal proceedings are to be instituted against him or her or if imperative reasons of security justify internment.[711] The status of journalists with respect to internal armed conflict is not explicitly defined,[712] however, journalists should be considered civilians in this type of conflict as well, so long as they do not engage in acts of hostility or participate directly in hostilities.[713] It should be emphasized that the dissemination of information or the expression of opinions in favor or in disfavor of a party involved in the conflict cannot be considered as hostile acts and cannot render the person expressing such views or opinions a legitimate military objective.[714]
302. Of course, journalists often assume risks that ordinary civilians do not, by virtue of their profession. According to Hans Peter Gasser, “[a] journalist may [...] lose, not his right to protection as a civilian, but de facto protection if he stays too close to a military unit [...] since that unit is a lawful target of enemy attack (unless the proportionality rule prohibits the attack – Article 51, par. 5 (b)). He thus acts at his own risk. The same applies to journalists who approach military targets.�?[715] The important point is that although journalists do not benefit from protections over and above those granted to ordinary civilians, they must never be the direct object of an attack, so long as engaged in vocational activities, in accordance with the principle of distinction.[716]
303. Media installations, such as television and radio stations, may be entitled to protection as civilian objects under international humanitarian law.[717] Parties to a conflict are required to distinguish between civilian objects, which may not be attacked, and military objectives, which may be.[718] Civilian objects are “all objects which are not military objectives,�? as defined by Article 52, paragraph 2 of Protocol I. Military objectives are those that “by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.�?[719] Objects which are normally considered “civilian objects�? may become legitimate military objectives if they are “being used to make an effective contribution to military action;�?[720] however, in case of doubt about such use, it must be presumed that it is not being so used.[721] While media installations are not specifically mentioned as civilian objects, they should generally be considered as such, since their nature and location is generally not military-related, and since they are generally not used for military purposes or to make an effective contribution to the military action. However, if media installations are used as part of a command and control or other military function, they may become legitimate military targets subject to direct attacks.
b. Right to Know Fate of Relatives
304. Another aspect of international humanitarian law that relates to the right to freedom of expression in international armed conflicts, in particular the right to information, is the right of families to know the fate of their relatives.[722] Under Article 122 of the Third Geneva Convention, each Party to a conflict, as well as each neutral or non-belligerent power receiving such persons in its territory, must establish an official Information Bureau for prisoners of war in its power. This Bureau is charged with gathering information regarding "transfers, releases, repatriations, escapes, admissions to hospital, and deaths" of prisoners of war and answering inquiries concerning prisoners of war.[723] In addition, a Central Prisoners of War Information Agency must be established in a neutral country to facilitate the transfer of information about prisoners of war to their home countries.[724] In cases of death of prisoners of war, Article 120 of the Third Geneva Convention provides for specific procedures to be followed regarding preparation of the death certificate, forwarding of the information to the Prisoner of War Information Bureau, medical examination of the body, and proper burial. The Detaining Power must establish a Graves Registration Service so that graves may be found.[725] The Fourth Geneva Convention contains similar requirements with respect to maintaining information concerning the fate of civilians interned in the course of armed conflict.[726]
305. Under Article 33 of Protocol I, Parties to a conflict have the duty to “search for the persons who have been reported missing by an adverse Party�? and to hand over information obtained about such persons to an agency of the International Committee of the Red Cross, a national Red Cross agency, or the Protecting Power.[727] Parties also have the responsibility of gathering information about individuals who have been held in captivity or who have died during or as a result of the hostilities, to facilitate the process of answering requests for information.[728] Additionally, the Parties to a conflict must “endeavour to agree on arrangements for teams to search for, identify and recover the dead from battlefield areas, including arrangements, if appropriate, for such teams to be accompanied by personnel of the adverse Party while carrying out these missions in areas controlled by the adverse Party.�?[729] Finally, Additional Protocol I contains a provision requiring the establishment of an International Fact-Finding Commission to "enquire into any facts alleged to be a grave breach as defined in the Conventions and this Protocol[.]"[730] The foregoing rights and responsibilities complement and reinforce in times of war the "right to truth" under human rights law, described earlier.
c. Right to Send and Receive Information
306. In international armed conflicts, prisoners of war have the right to write to their families immediately after capture and inform them of their "capture, address and state of health"[731] and to send and receive cards and letters.[732] These cards and letters may be limited in number if it is deemed necessary, but may not be limited to fewer than two letters and four cards monthly, not including the "capture card."[733] The detaining power may censor communications.[734] In cases in which written communication is not feasible due to distance or other problems, prisoners of war must be permitted to send telegrams.[735] Interned individuals have similar rights to communicate with family members.[736] Additionally, the Fourth Geneva Convention provides for the right of "[a]ll persons in the territory of a Party to the conflict, or in a territory occupied by it" to correspond with family members[737] and requires Parties to the conflict to facilitate communications between family members dispersed as a result of the war.[738] This is subject to limited circumstances in which protected persons detained in occupied territory may properly be regarded as forfeiting their rights of communication under the Fourth Geneva Convention.[739] These rights promote certain objectives similar to those promoted by the “right to truth" by providing relatives with means by which to receive information about the fate of family members.
307. Prisoners of war also have the right to receive "articles of a religious, educational or recreational character which may meet their needs, including books, devotional articles, scientific equipment, examination papers . . . and materials allowing prisoners of war to pursue their studies or their cultural activities."[740] This right is also protected in the case of interned persons.[741]
308. Finally, prisoners of war have the right to make known to their captors or to the Protecting Power requests and complaints about the conditions of their captivity.[742] These communications are not to be "considered to be a part of the correspondence quota referred to in Article 71."[743] Moreover, even if such requests or complaints are determined to be unfounded, "they may not give rise to any punishment."[744] Prisoners of war are also entitled to have representatives selected from among their members, who represent them "before the military authorities, the Protecting Powers, the International Committee of the Red Cross and any other organizations which may assist them."[745] These representatives may also "send periodic reports on the situation in the camps and the needs of the prisoners of war to the representatives of the Protecting Powers."[746] Interned individuals also have the right to present petitions to the detaining authorities regarding their conditions of internment, without fear of reprisal[747] and are entitled to select the members of an Internee Committee to represent their interests before the Detaining and Protecting Powers.[748] Such rights complement and reinforce the function of freedom of expression in that they serve to allow oversight of the activities of the parties to a conflict for the protection of individuals' rights.
3. The Right to Freedom of Expression and Terrorism
309. Terrorism is a serious problem affecting public order and in some cases, national security. Therefore, some subsequent limitations on freedom of expression or access to information related to fighting terrorism may be justified as measures that are necessary to protect the public order or national security. Such measures must satisfy the strict test required by Article 13(2), set forth earlier in this chapter.[749]
310. As has been reiterated throughout this report, the human rights guarantees found in the American Convention, the American Declaration and other international instruments apply fully in the context of addressing terrorism unless there is a legally declared state of emergency and the right limited is a derogable right. Again, although the right to freedom of expression is a derogable right in states of emergency, States considering suspending any aspect of this right should always bear in mind the importance of freedom of expression for the functioning of democracy and guaranteeing other fundamental rights.
311. Among the restrictions of freedom of expression that states are likely to impose in the context of fighting terrorism are prior censorship of publications related to terrorist activity or anti-terrorism strategies, subsequent liability for publication or dissemination of information or opinions related to such issues, withholding by the government of information related to such issues, restrictions on access to hearings and other governmental meetings on terrorism-related issues, and limitations on the right of journalists to protect their sources in order to assist law enforcement efforts. Such restrictions may or may not be compatible with Article 13 of the American Convention. Particularly in the case of prior censorship, compatibility with Article 13 will depend on whether or not a lawfully declared state of emergency exists.
Notes_______________________________________________
[639] American Declaration, supra note 63.
[640] American Convention on Human Rights, supra note 61.
[641] Declaration of Principles on Freedom of Expression, in Basic Documents, supra note 13, at 189.
[642] Universal Declaration of Human Rights, supra note 65.
[643] International Covenant on Civil and Political Rights, supra note 66.
[644] European Convention on Human Rights, supra note 137. Although the OAS member states are not parties to this instrument, it nevertheless constitutes a pertinent comparative reference concerning the international protection of the right to freedom of expression. The jurisprudence of the European Court of Human Rights interpreting Article 10 is also useful to inform the interpretation of Article 13 of the American Convention in areas which have not yet been addressed or fully developed in the inter-American system. However, the higher value placed on freedom of expression in the inter-American system must also be taken into account.
[645] Advisory Opinion OC-5/85, supra note 152, para. 50.
[646] Advisory Opinion OC-5/85, supra note 152, para. 50.
[647] Advisory Opinion OC-5/85, supra note 152, para. 70.
[648] Advisory Opinion OC-5/85, supra note 152, paras. 30-32.
[649] Eur. Ct. H.R., Handyside v. United Kingdom, Judgment of December 7, 1976, Ser. A Nº 24, para. 49. See also I/A Court H.R., Olmedo Bustos et. al Case ("Last Temptation of Christ"), Judgment of February 5, 2001, Series C Nº 73, para. 69; IACHR, Annual Report 1994, Report on the Compatibility of Desacato Laws with the American Convention on Human Rights, OEA/Ser.L/V/II.88., Doc. 9 rev (1995), 197, 204-205.
[650] Declaration of Principles on Freedom of Expression, supra note 641, Preamble.
[651] For a discussion of derogation under inter-American human rights instruments, see supra Part II(B), paras. 49-52.
[652] See American Convention on Human Rights, supra note 61, Article 13(4).
[653] Advisory Opinion OC-5/85, supra note 152, para. 54.
[654] Olmedo Bustos et al. Case, supra note 649, para. 70.
[655] Case 11.230, Report Nº 11/96, Francisco Martorell (Chile), Annual Report of the IACHR 1996 (regarding ban on entry into circulation and distribution of a book that was allegedly defamatory), para. 56.
[656] With the exception provided for in Article 13(4) of the American Convention.
See previous section on prior censorship.
[657] American Convention on Human Rights, supra note 61, Article 13(2).
[658] Eur. Court H.R., Sunday Times v. United Kingdom, Judgment of April 26, 1979,
Ser. A Nº 30, para. 49.
[659] See, e.g., Id., paras. 49-53 (finding that a principle formulated in common law but not previously applied to a case with similar facts was reasonably foreseeable). See also Eur. Court H.R., Rekvényi v. Hungary, Judgment of May 20, 1999, Reports of Judgments and Decisions 1999-III, p 423, para. 34 (stating that the level of precision required depends on the content of the instrument in question, its subject matter, and the number and status of those to whom it is addressed, and finding that a constitutional provision containing vague terms was sufficiently precise when read in conjunction with complementary laws and administrative regulations); Eur. Court H.R., Hashman and Harrup v. United Kingdom, Judgment of November 25, 1999, Reports of Judgments and Decisions 1999-VIII, p 1, paras. 29-43 (finding that the interference with freedom of expression was not compatible with Article 10 of the European Convention because the definition of the offense was overly vague and therefore not adequately “prescribed by law�?).
[660] Advisory Opinion OC-5/85, supra note 152, para. 64. See also supra Part II(B), para. 55 (discussion on contrast of concept of public order with the civil law concept of "ordre public").
[661] Advisory Opinion OC-5/85, supra note 152, para. 69.
[662] The Johannesburg Principles on National Security, Freedom of Expression and Access to Information (November 1996), available in http://www.article19.org/docimages/511.htm, last visited 11 August 2002 [hereinafter Johannesburg Principles], Principle 2(a). For a discussion regarding the authoritative nature of the Johannesburg Principles, see infra note 687. See also Kate Martin and Andrzej Rzeplinski, Principles of Oversight and Accountability, in the Public Interest: Security Services in a Constitutional Democracy, Project of the Helsinki Foundation for Human Rights, Warsaw, Poland, in cooperation with the Center for National Security Studies, Washington, DC, January 6, 1998.
[663] Advisory Opinion OC-5/85, supra note 152, para. 46.
[664] Advisory Opinion OC-5/85, supra note 152, para. 46.
[665] Advisory Opinion OC-5/85, supra note 152, para. 46.
[666] Advisory Opinion OC-5/85, supra note 152, para. 46.
[667] IACHR, Annual Report 2000, Vol. III, Report of the Office of the Special Rapporteur for Freedom of Expression, [hereinafter 2000 Special Rapporteur Report] OEA/Ser.L/V/II.114, Doc. 20 rev., p. 24. See also Felipe Fierro Alvídez, El derecho y la libertad de expresión en México, debates y reflexiones (The law and freedom of expression in Mexico, debates and reflections), Revista
Latina de Comunicación Social, Dec. 2000, available at http://www.ull.es/publicaciones/ latina/04fierro.htm.
[668] Eur. Court H.R., Goodwin v. United Kingdom, Judgment of March 27, 1996, Reports of Judgments and Decisions, Nº 7 1996-II, p.483, para 39.
[669] Goodwin v. United Kingdom, supra note 668, para. 39.
[670] See Declaration of Principles on Freedom of Expression, supra note 641, Principle 8.
[671] See 2000 Special Rapporteur Report, supra note 667, at 24.
[672] See Declaration of Principles on Freedom of Expression, supra note 641, Principle 4; See also Report of the Special Rapporteur on the protection and promotion of the right to freedom of opinion and expression, Mr. Abid Hussein, UN doc. E/CN.4/1999/64, 29 January, 1999. The UN Special Rapporteur on the protection and promotion of the right to freedom of expression stated that the right to seek and receive information "imposes a positive obligation on States to ensure access to information, particularly with regard to information held by Government in all types of storage and retrieval systems--including film, microfiche, electronic capacities, video and photographs--subject only to such restrictions as referred to in article 19, paragraph 3, of the International Covenant on Civil and Political Rights." Id., para. 12.
[673] Toby Mendel, Freedom of Information as an Internationally Protected Right (2000), available at http://www.article19.org/docimages/627.htm.
[674] See IACHR, Annual Report 2001, Vol. II, Report of the Office of the Special Rapporteur for Freedom of Expression [hereinafter 2001 Special Rapporteur Report], OEA/Ser.L./V/II.114, Doc. 5 rev. 1, p.72; 2000 Special Rapporteur Report, supra note 667, at 18.
[675] See Alicia Pierini et al., Habeas Data: Derecho a la Intimidad (Habeas Data: The Right to Privacy), Editorial Universidad (Buenos Aires 1999), at 31.
[676] Article XIX, The Public's Right to Know: Principles on Access to Information Legislation (June 1999), available in http://www.article19.org/docimages/1113.htm [hereinafter Freedom of Information Principles], Principle 1. Article XIX is a global non-governmental organization dedicated to promoting freedom of expression and access to official information. Its Freedom of Information Principles have been used widely by international organizations and NGOs. See, e.g. IACHR, Annual Report 1999, Vol. III, Report of the Office of the Special Rapporteur for Freedom of Expression [hereinafter 1999 Special Rapporteur Report], OEA/Ser.L/V/II.111, Doc. 3 rev., Vol. III, p.88; Commission on Human Rights Resolution 2001/47, U.N. Commission on Human Rights, 57th Sess., Supp. Nº 3, at 209, E/CN.4/RES/2001/47 (2001), preamble.
[677] See discussion, supra Part III(B), para. 122.
[678] See, eg, Johannesburg Principles, supra note 662, Principle 1(d).
[679] American Convention on Human Rights, supra note 61, Article 13(2).
[680] Freedom of Information Principles, supra note 676, Principle 4.
[681] Freedom of Information Principles, supra note 676, Principle 4.
[682] Freedom of Information Principles, supra note 676, Principle 5.
[683] Freedom of Information Principles, supra note 676, Principle 7.
[684] See Freedom of Information Principles, supra note 676, Principle 7.
[685] See Freedom of Information Principles, supra note 676, Principle 7.
[686] Johannesburg Principles, supra note 662.
[687] The Johannesburg Principles constitute a set of voluntary principles drafted by a committee of international experts on human rights and media law, and are frequently invoked by the UN Commission on Human Rights (see, e.g., Commission on Human Rights Resolution 2002/48, UN Commission on Human Rights, 58th Sess., UN Doc. E/CN.4/RES/2002/48 (2002), Preamble; Resolution 2001/47, UN Commission on Human Rights, supra note 676), the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (See, e.g., Report of the Special Rapporteur, Mr. Abid Hussain, pursuant to Commission on Human Rights resolution 1993/45, UN Commission on Human Rights, 52nd Sess., E/CN.4/1996/39, 22 March 1996, para. 4.), the UN Special Rapporteur on the independence of judges and lawyers (See, e.g., Report of the Special Rapporteur on the independence of judges and lawyers, Mr. Param Cumaraswamy, Addendum, Report on the mission to Peru, UN Commission on Human Rights, 54th Sess., E/CN.4/1998/39/Add.1, 19 February 1998, introduction.) and the Special Representative of the Secretary-General on human rights defenders (See, e.g., Report submitted by Ms. Hina Jilani, Special Representative of the Secretary-General on human rights defenders in accordance with Commission resolution 2000/61, UN Commission on Human Rights, 57th Sess, E/CN.4/2001/94, 26 January 2001, para. 14).
[688] Johannesburg Principles, supra note 662, Principle 19.
[689] Johannesburg Principles, supra note 662, Principle 19.
[690] Declaration of Principles on Freedom of Expression, supra note 641, Principle 3.
[691] “Sensitive information�? is understood as anything having to do with the private life of the person.
[692] See Pierini et al., supra note 675, at 16.
[693] See 2001 Special Rapporteur Report, supra note 674, at 75.
[694] See, e.g., I/A Court of H.R., Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru), Judgment of March 14, 2001, Series C Nº 75.
[696] See Victor Abramovich and Christian Courtis, El acceso a la información como derecho, 10 Cuadernos de Análisis Jurídico, 197, 206 (Escuela de Derecho, Universidad Diego Portales, Santiago, Chile 2000).
[697] See discussion supra para. 286.
[698] See Miguel Angel Ekmekdjian, Derecho a la Información: Reforma Constitucional y Libertad de Expresión, Nuevos Aspectos, Ediciones Depalma, Buenos Aires (1996) p.114.
[699] Advisory Opinion OC-5-85, supra note 152, para 34.
[700] Advisory Opinion OC-5-85, supra note 152, para. 34.
[701] Advisory Opinion OC-5-85, supra note 152, para. 34.
[702] I/A Court H.R., Ivcher Bronstein Case, Judgment of February 6, 2001, Series C
Nº 74, paras. 147-150. In the case of Ivcher Bronstein, the Court indicated that “the resolution that annulled Mr. Ivcher’s nationality constituted an indirect means of restricting his freedom of expression, as well as that of the journalists who worked and conducted investigations for Contrapunto of Peruvian television’s Channel 2.�? Id., para. 162. Additionally, the Court concluded that “[b]y separating Mr. Ivcher from the control of Channel 2 and excluding the Contrapunto journalists, the State not only restricted their right to circulate news, ideas and opinions, but also affected the right of all Peruvians to receive information, thus limiting their freedom to exercise political options and develop fully in a democratic society.�? Id., para. 163.
[703] Declaration of Principles on Freedom of Expression, supra note 641, Principle 9.
[704] See Case 11.739, Report No 50/99, Hector Felix Miranda (Mexico), Annual Report of the IACHR 1998.
[705] Velásquez Rodríguez Case, supra note 249, para. 177.
[706] See Miranda, supra note 704, para. 52.
[707] See supra, Part II(C), para. 65.
[708] See Additional Protocol I, supra note 68, Article 79; Additional Protocol II, supra note 36, Article 13. See also supra Part II(C), para. 65 dealing with the principles of distinction and proportionality; Tadić AC Decision Jurisdiction, supra note 163, paras. 117-119. See also Gasser, H.-P., "The protection of journalists engaged in dangerous professional missions: Law applicable in periods of armed conflict" in International Review of the Red Cross, Nº 232, 1983, p. 3-21, cited in Marco Sassoli and Antoine A. Bouvier, supra nota 162, at 427. "[T]he instruments of international humanitarian law make no statements on the justification or legality of journalistic activities in times of war. […] In other words, humanitarian law does not protect the journalists [sic] function but protects men engaged in this activity." Id. p. 427.
[709] Additional Protocol I, supra note 68, Article 79(2).
[710] Third Geneva Convention, supra note 67, Article 4(A)(4).
[711] See Gasser, supra note 708, at 429.
[712] Article 3 common to the Geneva Conventions, supra notes 36, 67; Additional Protocol II, supra note 36, Article 13.
[713] See Gasser, supra note 708, at 427. See also Article 4 and Article 13 Additional Protocol II, supra note 36.
[714] IACHR Report on Colombia (1999), supra note 110, at 87, Ch. IV, Section C(2)(d).
[715] See Gasser, supra note 708, at 428.
[716] See supra, Part II(C), supra para. 65 discussing the principle of distinction. See also Additional Protocol I, supra note 68, Articles 51, 52; Additional Protocol II, supra note 36, Article 13. See also Tadić AC Decision Jurisdiction, supra note 163, paras. 117-119.
[717] See Additional Protocol I, supra note 68, Articles 52-56, 85(3); Additional Protocol II, supra note 36, Article 13. See also supra Part II(C), para. 65 concerning the principles of necessity, humanity, distinction and proportionality.
[718] Additional Protocol I, supra note 68, Article 48. See also supra Part II(C), para. 65 dealing with the principles of distinction and proportionality; Tadić AC Decision Jurisdiction, supra note 163, paras. 117-119.
[719] Additional Protocol I, supra note 68, Article 52(2). See also Additional Protocol II, supra note 36, Article 13.
[720] Additional Protocol I, supra note 68, Article 52(3). See also Additional Protocol II, supra note 36, Article 13.
[721] Additional Protocol I, supra note 68, Article 52(3).
[722] Additional Protocol I, supra note 68, Article 32.
[723] Third Geneva Convention, supra note 67, Article 122.
[724] Third Geneva Convention, supra note 67, Article 123.
[725] Third Geneva Convention, supra note 67, Article 120.
[726] See Fourth Geneva Convention, supra note 36, Article 136 (requiring the establishment of an Information Bureau); Article 140 (requiring the establishment of a Central Information Agency); Articles 129-131 and 136-141 (setting forth the types of information that must be recorded, particularly in the case of the death of an internee, and the methods of transmission to the Protecting Power or home country of the internee).
[727] Additional Protocol I, supra note 68, Article 33(1), (3).
[728] Additional Protocol I, supra note 68, Article 33(2).
[729] Additional Protocol I, supra note 68, Article 33(4).
[730] Additional Protocol I, supra note 68, Article 90.
[731] Third Geneva Convention, supra note 67, Article 70.
[732] Third Geneva Convention, supra note 67, Article 71.
[733] Third Geneva Convention, supra note 67, Article 71. See also Additional Protocol II, supra note 36, Article 5(2)(b).
[734] Third Geneva Convention, supra note 67, Articles 71, 76.
[735] Third Geneva Convention, supra note 67, Article 71.
[736] Fourth Geneva Convention, supra note 36, Article 106 (providing the right to send an "internment card"); Article 107 (providing for the right to send letters or cards).
[737] Fourth Geneva Convention, supra note 36, Article 25
[738] Fourth Geneva Convention, supra note 36, Article 26.
[739] See Fourth Geneva Convention, supra note 36, Article 5 (providing that “[w]here in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activities hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.�?).
[740] Third Geneva Convention, supra note 67, Article 72.
[741] Fourth Geneva Convention, supra note 36, Article 108.
[742] Third Geneva Convention, supra note 67, Article 78.
[743] Third Geneva Convention, supra note 67, Article 78.
[744] Third Geneva Convention, supra note 67, Article 78.
[745] Third Geneva Convention, supra note 67, Article 79.
[746] Third Geneva Convention, supra note 67, Article 78.
[747] Fourth Geneva Convention, supra note 36, Article 101.
[748] Fourth Geneva Convention, supra note 36, Article 102.
[749] See discussion, supra paras. 274-278, relating to the requirements imposed by Article 13(2) of the American Convention in order to impose subsequent liability for speech.