Freedom of Expression in Latin America

The Inter-American Human Rights System

By Catalina Botero Marino and Michael J. Camilleri

In June 1997, Chile’s Supreme Court upheld a ban on the film “The Last Temptation of Christ,” based on a Pinochet-era provision of the country’s constitution. Four years later, the Inter-American Court of Human Rights heard a challenge to this ban and issued a very different decision. The hemisphere’s highest human rights tribunal found that in censoring the film Chile had violated its international obligation to respect freedom of thought and expression. It ordered Chile not just to allow “The Last Temptation of Christ” to be screened, but also to modify its constitution so that such censorship would not be repeated in the future.

As the Inter-American Court’s first freedom of expression judgment, it was a landmark ruling. But what happened next was even more remarkable: within a few months, Chile complied with the Court’s decision by amending its constitution and consigning film censorship to its authoritarian past.

Fortunately, direct prior censorship has all but disappeared today not just in Chile but in the vast majority of Latin America (Cuba being the notable exception), and the region is freer and more democratic because of it. Indeed, during the last two decades of the 20th century, there was a genuine democratic rebirth in Latin America, marked by the fall of military dictatorships, the end of the Cold War, and the adoption of democratic, rights-protective constitutions.

Nonetheless, in the area of free speech the legal remnants of authoritarianism often persisted long after democracy was restored. Under anachronistic desacato (contempt) laws, for example, journalists and others in many countries risked jail terms when expressing opinions critical of public officials or institutions.

Against this backdrop, the inter-American human rights system—composed of the Inter-American Commission on Human Rights (including, since 1998, its Office of the Special Rapporteur for Freedom of Expression) and the Inter-American Court of Human Rights—has played a critical role in rolling back the vestiges of authoritarianism in Latin American legal codes and thus consolidating the transition to democratic forms of government.

Over the past decade, journalists and civil society advocates have successfully petitioned the Inter-American Commission and Court to strike down judicial decisions that restricted free speech, as well as the laws on which they were based. When Costa Rican journalist Mauricio Herrera Ulloa was convicted of criminal defamation for reporting on alleged acts of corruption, the Inter-American Court overturned his conviction. When the owner of a Peruvian television station was stripped of his nationality and his control over his station after it aired reports on corruption and human rights abuses, the Inter-American Court ordered Peru to restore his rights. And when a Chilean environmental organization was denied government information about a logging project, the Inter-American Court ordered Chile to turn over the information and strengthen its access to information laws and procedures.

In these cases and others, the inter-American system has issued landmark decisions that not only provided individual relief but sought far-reaching legal and practical consequences. Perhaps even more significantly, states in the region have for the most part complied with these orders by reforming their domestic laws to better comply with hemispheric legal norms. Over time, inter-American case law has been directly incorporated into the national legislation and jurisprudence of a number of Latin American countries. In recent years, for example, Uruguay and Argentina decriminalized speech regarding matters of public interest; the Federal Supreme Court of Brazil struck down a dictatorship-era press law that resulted in censorship and imposed severe penalties for criminal defamation offenses; the Constitutional Court of Colombia issued a decision protecting the right to confidential sources; and the Supreme Court of Mexico struck down a vague criminal law that protected the honor and privacy of public officials. Furthermore, in the last decade, great progress has been made in removing some—though not all—of the more nefarious speech prohibitions, such as desacato laws, from the criminal codes of a number of Latin American countries.

We believe that while much of the progress in the area of freedom of expression can be attributed to the democratic explosion in Latin America in the 1980s and early 1990s, the simultaneous emergence of the inter-American system as a meaningful forum for human rights protection has both buttressed and deepened democratic transitions, not least by promoting a robust interpretation of the right to freedom of expression.

However, a number of important challenges remain in the struggle to guarantee free speech in Latin America. The Office of the Special Rapporteur for Freedom of Expression calls these continuing challenges our “Hemispheric Agenda for the Defense of Freedom of Expression.”

First, the region has an alarming, lingering history of violence against journalists and impunity with regard to such crimes. A 2008 study by the Office of the Special Rapporteur for Freedom of Expression on the murder of journalists and media workers between 1995 and 2005 identified 157 deaths in 19 countries in the hemisphere for reasons possibly related to the practice of journalism. The study found that the investigations into these crimes are, overwhelmingly, slow and plagued by serious procedural deficiencies, to the point that they neither established the facts nor punished those responsible. Convictions (of any kind) were handed down in only 32 of the 157 cases examined.

Unfortunately, the violence continues. In 2010, 27 journalists were killed in Latin America, including nine journalists in Honduras and thirteen in Mexico. While in the region’s authoritarian past governments themselves were responsible for much of the violent repression against critical voices, today powerful non-state actors—especially organized crime—have emerged as the principal threat to the lives and integrity of journalists, particularly those who report on issues such as drug trafficking, corruption and public security. This alarming situation requires governments in the countries where media workers are most at risk to take urgent and decisive action, such as the establishment of protection programs for journalists and special prosecutorial units to investigate crimes against them.

Second, in spite of the aforementioned progress in rolling back desacato laws, many countries in Latin America still use criminal laws to punish speech and silence dissident voices. Those who criticize public officials or institutions continue to risk prison terms for crimes such as defamation in a number of countries in the region. Furthermore, other criminal offenses are sometimes used to criminalize social protest or the expression of opinions that differ from those of the authorities.

Third, while enormous progress has been made in eradicating direct prior censorship in the region, several forms of indirect censorship now pose a significant concern, including the arbitrary allocation of public resources such as government advertising, frequencies or subsidies; the arbitrary use of the mechanisms of regulation and oversight; and the creation of an environment of intimidation that inhibits dissident speech.

Fourth, the hemisphere faces diverse challenges on the subject of access to public information. A number of countries still have not enacted access to information laws and the accompanying enforcement regimes. In other countries, laws exist but may fall short of inter-American standards establishing that every person has the human right to access to information administered or produced by the state, without needing to prove a special interest in the information. Still other countries face challenges in providing effective and appropriate mechanisms for requesting access to government information, and guaranteeing effective and independent controls to prevent administrative arbitrariness in granting or refusing access.

Finally, the public debate in Latin America often suffers from a lack of participation by social groups that have suffered discrimination or marginalization. Such groups lack access to institutional or private channels for the serious, robust and consistent exercise of their right to publicly express their ideas and opinions or to be informed of the issues that affect them. Society, in turn, is deprived of knowledge about their interests, customs, needs and ideas. States must therefore combat excessive concentration in the control and ownership of communications media, while taking affirmative steps to facilitate the participation of historically marginalized groups in the marketplace of ideas. Recognizing and facilitating the operation of community broadcasters is crucial is this regard.

These challenges, and many others, can only be met through the combined efforts of a variety of actors, including governments, the press and civil society. The inter-American human rights system will continue to play an important subsidiary role in the struggle to strengthen freedom of expression in the Americas, supporting the efforts of policymakers, press associations, non-governmental organizations and concerned citizens, while calling governments to account when they fall short of hemispheric free speech standards.

Catalina Botero Marino, a Colombian lawyer, has served as Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights since 2008.

Michael J. Camilleri, Harvard J.D. ’04 is a Human Rights Specialist with the Office of the Special Rapporteur for Freedom of Expression. Information about the Office of the Special Rapporteur is available at: http://www.cidh.oas.org/relatoria/.